REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1159 OF 2001

Batcu Venkateshwarlu and Ors. ..Appellant  

versus

Public Prosecutor High Court of A.P. ..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  allowing the  appeal  filed by the  State  under

Section  378  (1)  and  (3)  of  the  Code  of  Criminal  Procedure,  1973

(hereinafter   referred  to  as  the  “Present  Code”)  against  the  judgment  of

acquittal passed by learned First Additional Sessions Judge, Guntur. There

is no necessity to refer to the factual aspects in detail.  

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2. In  all,  65  persons  faced  trial  for  alleged  commission  of  offences

punishable under several sections of the Indian Penal Code, 1860 (in short

‘IPC’).     

3. Prosecution version as unfolded during trial is as follows:

There were in all three murders. The names of the deceased persons

were Nallappaneni Sambasiva Rao, Ch. Chinna Koteshwar Rao and Turaka

pullaiah. They are hereinafter referred to as D1, D2 and D3 respectively.

Out of 36 charges framed, prosecution did not examine witnesses to prove

the charges No.17, 18, 23 and 24. All the accused and PWs 1 to 27 belong

to Balausupadu Village within the limits of Peddakurapadu Police Station,

Sattenapalli Circle, Guntur District. There are two groups in the village. A1

is the leader of one group and one Irukupatti Abaiah is the leader of another

group.  There  were  cases  and  counter  cases  between  the  two groups  and

security proceedings were initiated against both the groups. A police picket

was posted in the village to maintain law and order and peace.  

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On  14.5.1990  in  the  morning  PW-12  was  stabbed  by  A-11  in

Harijanwada  and  the  same  was  registered  as  Crime  No.38/1990.  The

prosecution party retaliated by attacking a person by name A. Bharataiya

and  the  said  case  was  registered  as  Crime No.37/1990.  Due  to  the  said

violence,  police  opened  fire.  Fortunately,  nobody was injured due  to  the

opening of fire, but police themselves sustained injuries as both the groups

pelted stones at them. The case was registered as Crime No.36/1990. While

the matter  stood thus,  at  about 12.30 p.m., A-1 along with 200 supports

including all the accused mentioned in the charge sheet went to the house of

PW-1 and made attacks. This is the main incident on which the trial was

conducted.  

P.W.1 belongs to the opposite group. When P.W.1 was discussing the

attack made on P.W.12 in the morning by A11, A1 went to his house and

exhorted the other  accused to kill  and beat.  A1 alleged to  have inflicted

injuries  by  a  spear  on  P.W.1  on  his  right  thigh  and  on  his  back.  D1

happened to be the son of P.W.1. He was terribly frightened on seeing the

attack on his father.  He ran to the upstairs of the house. Then A1 to A4

allegedly chased D1 and attacked him with spears and axes. A2 held D1

tightly and A3 put a towel over the neck of D1 and pulled him down. Then

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A1 inflicted  injuries  by  a  spear  on  D1 on  his  right  chest.  A2  allegedly

inflicted injuries by spear below his right thigh. A3 stabbed on the left thigh

of D1 and A4 allegedly inflicted injuries by axe on the left leg of D1.

While A1 to A4 chased D1, the other accused chased D2 and attacked

him in the cattle-shed of one I. Nageshwar Rao, A18 alleged to have hit D2

on the back of his head by an axe.  A19 hit him on the left side of his head

by a spear. A20 hit him on his back with spear and A21 hit on the back of

his shoulder with spear. A22 inflicted injuries on the left side of his chest

with spear. A23 speared on his right leg. A28 speared on his left  leg. At

about the same time, D3 was returning to his house along with his wife,

PW.24. When they were nearing the house of PW.1, A18, A20, A21 and

A30 to A35 attacked D3. A21 is alleged to have attacked D3 on his right

forehead. A18 is alleged to have speared on his left chest. A-20 is alleged to

have speared on his left ribs and A-34 is alleged to have axed on his right

wrist.

It is the further case of the prosecution that A1 to A4 attacked P.W.2.

P.W.3 was attacked by A31, A36 to A38.  A1 to A4 attacked P.W.4 and

caused  simple  injuries.  A9,  A26 and  A35  attacked  P.W.5,  A39  attacked

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P.W.6 and caused simple injuries. A40, A41 and A42 attacked P.W.9 and

caused  simple  injuries.  A43  and  A44 attacked  P.W.8 and caused  simple

injuries.  A33,  A44  and  A54  attacked  P.W.9  and  caused  simple  injuries.

A16, A33, A56 to A59 attacked P.W.13 and caused simple injuries. A19,

A33, A46 to A54, A60 to A62, A64 and A65 attacked P.W.11 and caused

simple injuries.

On  the  same  day  at  about  2  p.m.  P.W.1  reported  the  offence  to

P.W.30,  who  happened  to  be  the  Head  Constable,  attached  to

Peddakurapadu Police Station, who was camping at Balsapadu Village. The

report was reduced to writing by P.W.30. Ex.P1 is the said report P.W.30,

sent the said report  to the Police Station through a Constable, which was

received by P.W.33, Sub Inspector of Police, Peddakurapadu Police Station.

On the strength of Ex.P1, P.W.33 registered the case in Crime No.35/1990

against the accused for offences punishable under Sections 147, 148, 324,

307, 448, 447, 427, 379 and 302 read with Section 149 IPC. He sent copies

of the FIR to all concerned. He informed the Inspector of Police, P.W.35

who was at Guntur. P.W.35 and 33 reached the scene of offence at about the

same time. P.W.35 drafted observation report of the scene of offence Ex.P2.

P.W.25 acted as Panch witness to Ex.P2. P.W.35 prepared rough sketch of

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the scene of offence marked as Ex.P26. He held inquest over the dead body

of DI from 7 to 9 p.m. P.W.25 acted as Panch. Ex.P3 is the inquest report in

respect of D1. Thereafter he held inquest over the dead body of D2 in the

presence of PW.25 who acted as Panch witness. Subsequently, he examined

PWs.1 to 5 on the same day.

On 15.5.1990,  PW.35  examined  PWs.10,  14  to  23  and  others.  On

14.5.1990,  the injured and D3 were referred  to  the  Hospital.  PW.32,  the

Head Constable Sattenapally Police Station recorded dying declaration of

D3 which is produced  on record at Ex.P22, on 14.5.1990 at 9.15 p.m. D3

died in the hospital on 15.5.1990. Death intimation was given to the Police

Station which is Ex.P.25.

PW.35 visited the Government Hospital, Sattenapally and conducted

inquest over dead body of D3 which is Ex.P5. The inquest was conducted in

the  Hospital  in  the  presence  of  PW.27.  Thereafter,  PW.25  recorded  the

statements of PWs.5 to 9 on 15.5.1990. He examined PW.9 on 16.5.1990.

After the inquest was over the dead bodies of D1 to D3 were sent for post

mortem  examination.  Civil  Assistant  Surgeon,  Government  Hospital,

Sattenapally,  (PW.31) conducted  post-mortem examination  over the  dead

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body of D1 on 15.5,1990. Ex.P8 is the post mortem certificate issued by him

in respect of D1. PW.30 found four injuries on the dead body of D1.

On  15.5.1990,  Civil  Assistant  Surgeon,  Government  Hospital,

Sattenapally, (PW.29) conducted autopsy over the dead body of D2. Post

mortem  certificate  issued  by  him  is  Ex.P7,  Civil  Assistant  Surgeon,

Government  Hospital,  Sattenapally,  (PW.28)  conducted  post  mortem

examination  over  the  dead  body  of  D3  and  issued  Ex.P6  post  mortem

certificate. PW-31 examined P.Ws 1 to 11 on 14.5.1990 in the night itself

and issued wound certificate Exs.P9 to P20 respectively. As per the opinion

of the Doctor, the injuries noticed on the prosecution witnesses were simple

in nature. But the injuries found on the person of PW.4 were of grievous

nature.

On  completion  of  investigation  PW-33  filed  charge  sheet.   As

accused persons abjured guilt trial was held.  

The  trial  Court  after  referring  to  the  evidence  of  the  witnesses

produced by the prosecution held that prosecution failed to fasten the guilt

on  the  accused  persons.  In  the  State’s  appeal  the  challenge  was  to  the

judgment of acquittal, which was allowed.

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Out of 65 accused persons, name of A-63 was deleted and A-18 and

A-59  died  during  trial.  Therefore,  before  the  High  Court  there  were  62

respondents.   

4. It is submitted by learned counsel for the appellants that the Division

Bench  of  the High Court  after  referring  to  the  prosecution  case  and  the

evidence of the witnesses came to abrupt conclusions regarding the guilt of

the accused and upset the judgment of acquittal.  The factors which weighed

with the trial Court to direct acquittal were not taken note of by the High

Court. The High Court’s judgment does not meet the parameters indicated

by this Court relating to appeals against acquittal.  

5. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment of the High Court.  

6. We find that in the paper book filed by the appellants the judgment

covers 43 pages. Out of them the prosecution case and various decisions

have been noted upto page 41. After doing so, in three paragraphs the High

Court disposed of the appeal. The conclusions read as follows:  

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“As  far  as  the  attack  on  D1  to  D3  is  concerned,  we  have independently assessed the evidence of prosecution witnesses. The  injuries  caused  to  D1  to  D3  as  spoken  to  by  the independent  witnesses  are  materially  corroborated  by  the medical  evidence.  This  is  a  plus  point  in  favour  of  the prosecution.

As far as the injuries  on the prosecution witnesses  are concerned, we are not giving much importance. P.W.31 speaks about the examination of P.Ws.,1, 2, 3, 5, 6, 7, 8, 9,10 and 11 by  him. He  issued  the  wound  certificates  Exs.P9  to  P20 respectively. Except the injuries on PW.4 injuries on the other persons were of simple in nature. The injuries on PW.4 are of grievous in nature. By booking to the evidence on the point of injuries caused the prosecution witnesses, we can affirm their presence at the scene of offence. As far as the injuries on PW.4 are concerned, the injuries were certified by the Doctor to be grievous.  As  per  the  evidence  of  PW.4,  those  injuries  were attributed to Al who attacked PW.1,  D1 and  PW.4. We are taking cognizance of the said attack by Al.

As  stated  earlier,  the  prosecution  did  not  lead  the evidence as far as charges No. 17, 18, 23 and 24 are concerned. Therefore, the accused are acquitted of those charges.

Considering the entire evidence as brought on record, we convict Al to A4 for the offence punishable under Section 148 and sentence each of them to suffer rigorous imprisonment for one year. They are also convicted for the offence punishable under  Section  3O2  read  with  34  IPC  and  each  of  them  is sentenced to suffer imprisonment for life for causing the death of  D1.  We  convict  AI8  to  A23  and  A28  for  the  offence punishable under Section 148 IPC and sentence each of them

to suffer rigorous imprisonment for one year. We further convict A18 to A23 for the offence punishable  under Section 302 read with 34 IPC and each of them  is sentenced to suffer imprisonment for life for causing the death of D2.  A18, A20, A21,  A30  to  A34  are  convicted  for  the  offence  punishable under Section 148 IPC and each of them is sentenced to suffer rigorous imprisonment  for one year. They are also convicted

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for  the  offence  punishable  under  Sections  302  read  with Section 34 IPC for causing the death of D3 and each of them is sentenced  to  suffer  imprisonment  for  life.  The  substantive sentences imposed upon A18, A20 and A21 on two counts for causing the deaths of D2 and D3 are made to run concurrently.

The appeal filed by the State is allowed to the extent indicated above.”

7. To say the least, the manner of disposal of the appeal as done by the

High Court is highly unsatisfactory.  

8. Chapter  XXIX (Sections  372-394)  of  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 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:

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“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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9. Whereas  Sections  379-380  cover  special  cases  of  appeals,  other

sections lay down procedure to be followed by appellate courts.

10. It may be stated that more or less similar provisions were found in the

Code  of  Criminal  Procedure,  1898  (hereinafter  referred  to  as  “the  old

Code”)  which  came  up  for  consideration  before  various  High  Courts,

Judicial Committee of the Privy Council as also before this Court. Since in

the present appeal, we have been called upon to decide the ambit and scope

of the power of an appellate court in an appeal against an order of acquittal,

we have confined ourselves  to  one  aspect  only i.e.  an  appeal  against  an

order of acquittal.

11. Bare reading of Section 378 of the 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 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.

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12. 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.

13. Though the above principles are well established, a different note was

struck in several decisions by various High Courts and even by this Court. It

is, therefore, appropriate if we consider some of the leading decisions on the

point.

14. The first important decision was rendered by the Judicial Committee

of the Privy Council in Sheo Swarup v. R. Emperor  (1934) 61 IA 398).  In

Sheo Swarup  the  accused were acquitted  by the  trial  court  and the  local

Government directed the Public Prosecutor to present an appeal to the High

Court from an order of acquittal under Section 417 of the old Code (similar

to Section 378 of the present Code). At the time of hearing of appeal before

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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  the  High  Court  in  exercise  of  powers  as  an  Appellate

Tribunal. The Code also made no distinction as regards powers of the High

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Court  in  dealing  with  an  appeal  against  acquittal  and  an  appeal  against

conviction. Though several authorities were cited revealing different views

by the High Courts dealing with an appeal from an order of acquittal, the

Committee did not think it proper to discuss all the cases.

15. Lord Russel summed up the legal position thus:  

“There  is,  in  their  opinion,  no  foundation  for  the  view, apparently  supported  by the  judgments  of  some courts  in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has ‘obstinately blundered’, or  has  ‘through  incompetence,  stupidity  or  perversity’ reached such ‘distorted conclusions as to produce a positive miscarriage  of  justice’,  or  has  in  some  other  way  so conducted  or  misconducted  itself  as  to  produce  a  glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.”

16. His Lordship, then proceeded to observe: (IA p.404)

“Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the  order  of  acquittal  was  founded,  and  to  reach  the conclusion  that  upon  that  evidence  the  order  of  acquittal should  be  reversed.  No limitation  should  be  placed  upon that power, unless it be found expressly stated in the Code.”

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17. The Committee, however, cautioned appellate courts and stated: (IA

p.404)

“But  in  exercising  the  power  conferred  by the  Code  and before reaching its  conclusions upon fact,  the High Court should  and  will  always  give  proper  weight  and consideration to such matters as (1) the views of the trial Judge  as  to  the  credibility  of  the  witnesses;  (2)  the presumption  of  innocence  in  favour  of  the  accused,  a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court  in disturbing a finding of fact  arrived at  by a judge who had  the  advantage  of  seeing  the  witnesses.  To state this,  however,  is  only  to  say  that  the  High  Court  in  its conduct  of  the appeal  should  and will  act  in  accordance with rules and principles well known and recognised in the administration of justice.”

(emphasis supplied)

18. In  Nur  Mohd. v.  Emperor  (AIR  1945  PC  151), the  Committee

reiterated the above view in Sheo Swarup (Supra) and held that in an appeal

against acquittal, the High Court has full powers to review and to reverse

acquittal.

19. So far as this Court is concerned, probably the first decision on the

point was Prandas v. State (AIR 1954 SC 36) (though the case was decided

on 14-3-1950, it was reported only in 1954). In that case, the accused was

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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.

20. Upholding  the  decision  of  the  High  Court  and  following  the

proposition  of  law  in  Sheo  Swarup  (supra),  a  six-Judge  Bench  held  as

follows:

“6. It must be observed at the very outset  that  we cannot support the view which has been expressed in several cases that  the  High  Court  has  no  power  under  Section  417, Criminal  Procedure  Code,  to  reverse  a  judgment  of acquittal,  unless  the  judgment  is  perverse  or  the subordinate  court  has  in  some  way  or  other  misdirected itself so as to produce a miscarriage of justice.”

    (emphasis supplied)   

21. In  Surajpal  Singh v.  State  (1952  SCR  193), a  two-Judge  Bench

observed that it was well established that in an appeal under Section 417 of

the (old) Code, the High Court had full power to review the evidence upon

which the order of acquittal  was founded. But it  was equally well settled

that the presumption of innocence of the accused was further reinforced by

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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.

22. In Ajmer Singh v.  State of Punjab (1953 SCR 418) the accused was

acquitted by the trial court but was convicted by the High Court in an appeal

against acquittal filed by the State. The aggrieved accused approached this

Court. It was contended by him that there were “no compelling reasons” for

setting aside the order of acquittal and due and proper weight had not been

given by the High  Court  to  the opinion  of  the trial  court  as  regards  the

credibility of witnesses seen and examined. It was also commented that the

High Court  committed an error  of  law in  observing that  “when a strong

‘prima facie’ case is made out against an accused person it is his duty to

explain the circumstances appearing in evidence against him and he cannot

take shelter behind the presumption of innocence and cannot state that the

law entitles him to keep his lips sealed”.

23. Upholding the contention, this Court said:  

“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)   

24. In Atley v. State of U.P. (AIR 1955 SC 807) this Court said:  

“In  our  opinion,  it  is  not  correct  to  say  that  unless  the appellate  court  in  an  appeal  under  Section  417,  Criminal Procedure Code came to the conclusion that the judgment of acquittal  under appeal  was perverse it  could not set  aside that order.

It has been laid down by this  Court that  it  is  open to the High Court  on  an  appeal  against  an order  of  acquittal  to review  the  entire  evidence  and  to  come  to  its  own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened  but  strengthened  by  the  judgment  of  acquittal passed  by  the  trial  court  which  had  the  advantage  of observing the demeanour of witnesses whose evidence have been recorded in its presence.

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)   

25. In Aher Raja Khima v.  State of Saurashtra (1955) 2 SCR 1285) the

accused was prosecuted under Sections 302 and 447 IPC. He was acquitted

by the trial court but convicted by the High Court. Dealing with the power

of the High Court against an order of acquittal, Bose, J. speaking for the

majority (2:1) stated: (AIR p. 220, para 1) “It is, in our opinion, well settled

that  it  is  not  enough  for  the  High  Court  to  take  a  different  view of the

evidence;  there  must  also  be  substantial  and  compelling  reasons  for

holding that the trial court was wrong.”  

        (emphasis supplied)

26. In  Sanwat Singh v.  State of  Rajasthan (1961) 3 SCR 120, a three-

Judge  Bench  considered  almost  all  leading  decisions  on  the  point  and

observed that there was no difficulty in applying the principles laid down by

the Privy Council and accepted by the Supreme Court. The Court, however,

noted that appellate courts  found considerable difficulty in understanding

the scope of the words “substantial and compelling reasons” used in certain

decisions. It was observed inter-alia as follows:

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“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.”

27. Again, in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405,

the point was raised before a Constitution Bench of this Court. Taking note

of earlier decisions, it was observed as follows:

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“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  not  necessary  that  before  reversing  a judgment  of  acquittal,  the  High  Court  must  necessarily characterise the findings recorded therein as perverse.”  

(emphasis supplied)

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28. Yet in another leading decision in Shivaji Sahabrao Bobade v. State

of Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no

jurisdictional limitation on the powers of appellate court. “In law there are

no fetters on the plenary power of the appellate court to review the whole

evidence on which the order of acquittal  is founded and, indeed, it  has a

duty to scrutinise the probative material de novo, informed, however, by the

weighty  thought  that  the  rebuttable  innocence  attributed  to  the  accused

having been converted into an acquittal the homage our jurisprudence owes

to  individual  liberty constrains  the higher  court  not  to  upset  the  holding

without very convincing reasons and comprehensive consideration.”  

29. Putting emphasis on balance between importance of individual liberty

and evil of acquitting guilty persons, this Court observed as follows:

“6.  Even  at  this  stage  we  may  remind  ourselves  of  a necessary social perspective in criminal cases which suffers from  insufficient  forensic  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

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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)

30. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the Court was

considering the power of the High Court against an order of acquittal under

Section 378 of the present Code. After considering the relevant decisions on

the point it was stated as follows:

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“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 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

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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)

31. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this

Court said:  

“While sitting in judgment over an acquittal the appellate court  is  first  required to seek an answer  to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any  of  the  above  infirmities  it  can  then-and  then  only- reappraise the evidence to arrive at its own conclusions.”

32. In  Allarakha  K.  Mansuri v.  State  of  Gujarat  (2002)  3  SCC  57,

referring to earlier decisions, the Court stated:  

“7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court

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has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to  reappreciate  the  evidence  in  acquittal  appeal  for  the purposes  of  ascertaining  as  to  whether  the  accused  has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because  the  accused has  been  acquitted  by the  trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.”   

33. In Bhagwan Singh v.  State of M.P. (2002) 4 SCC 85, the trial court

acquitted the accused but the High Court convicted them. Negativing the

contention of the appellants that the High Court could not have disturbed

the findings of fact of the trial court even if that view was not correct, this

Court observed:  

 “7.  We do not  agree with the submissions  of  the learned counsel  for  the  appellants  that  under  Section  378  of  the Code  of  Criminal  Procedure  the  High  Court  could  not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis  of  the  pronouncements  of  this  Court,  the  settled position of law regarding the powers of the High Court in an appeal against an order of 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

27

innocence,  the  view  which  is  favourable  to  the  accused should be adopted. Such is not a jurisdiction limitation on the  appellate  court  but  judge-made  guidelines  for circumspection. The paramount consideration of the court is to  ensure  that  miscarriage  of  justice  is  avoided.  A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate  the  evidence  in  acquittal  appeal  for  the purposes  of  ascertaining  as  to  whether  all  or  any  of  the accused has committed any offence or not”.  

34. In  Harijana  Thirupala v.  Public  Prosecutor,  High  Court  of  A.P.

(2002) 6 SCC 470, this Court said:  

“12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has  full  power  to  review the  evidence  to  reach  its  own independent  conclusion.  However,  it  will  not  interfere with an 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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35. In  Ramanand Yadav v.  Prabhu Nath Jha (2003) 12 SCC 606, this

Court observed:  

“21. There is no embargo on the appellate court reviewing the  evidence  upon  which  an  order  of  acquittal  is  based. Generally, the order of acquittal shall not be interfered with because  the  presumption  of  innocence  of  the  accused  is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases  is  that  if  two  views  are  possible  on  the  evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to  the  accused  should  be  adopted.  The  paramount consideration of the court  is  to ensure that  miscarriage of justice  is  prevented.  A miscarriage  of  justice  which  may arise from acquittal  of  the guilty is  no less  than from the conviction  of  an  innocent.  In  a  case  where  admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not”.  

36. Again in Kallu v. State of M.P. (2006) 10 SCC 313, this Court stated:  

“8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power  exists  to  review the  entire  evidence.  However, one significant difference is that an order of acquittal will not  be  interfered  with,  by  an  appellate  court,  where  the judgment  of  the  trial  court  is  based  on  evidence  and  the view taken is reasonable and plausible. It will not reverse the  decision  of  the  trial  court  merely  because  a  different

29

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)

37. From  the  above  decisions,  in  Chandrappa  and  Ors.  v.  State  of

Karnataka (2007 (4) SCC 415), the following general principles regarding

powers of the appellate court while dealing with an appeal against an order

of acquittal were culled out:

(1)  An appellate court has full  power to review, reappreciate

and  reconsider  the  evidence  upon  which  the  order  of  acquittal  is

founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,

restriction or condition on exercise of such power and an appellate court

on  the  evidence  before  it  may  reach  its  own  conclusion,  both  on

questions of fact and of law.

(3) Various  expressions,  such as,  “substantial  and compelling

reasons”,  “good and sufficient  grounds”,  “very strong circumstances”,

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“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 to be innocent unless he is proved guilty by a competent

court  of  law.  Secondly,  the  accused  having  secured  his  acquittal,  the

presumption  of  his  innocence  is  further  reinforced,  reaffirmed  and

strengthened by the trial court.

(5) If  two  reasonable  conclusions  are  possible  on  the  basis  of  the

evidence on record, the appellate court should not disturb the finding of

acquittal recorded by the trial court.

38. A person has, no doubt, a profound right not to be convicted of an

offence which is not established by the evidential standard of proof beyond

31

reasonable  doubt.  Though  this  standard  is  a  higher  standard,  there  is,

however,  no  absolute  standard.  What  degree  of  probability  amounts  to

“proof”  is  an  exercise  particular  to  each  case.  Referring  to  the

interdependence of evidence and the confirmation of one piece of evidence

by  another,  a  learned  author  says  [see  “The  Mathematics  of  Proof  II”:

Glanville  Williams,  Criminal  Law Review,  1979, by Sweet and Maxwell,

p.340 (342)]:

“The  simple  multiplication  rule  does  not  apply  if  the separate pieces of evidence are dependent. Two events are dependent  when  they  tend  to  occur  together,  and  the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant  did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent  people  who  make confessions,  and  guilty  rather than innocent people who run away, the two doubts are not to  be multiplied together.  The one piece of evidence may confirm the other.”

39. Doubts  would be called reasonable if  they are free from a zest  for

abstract speculation. Law cannot afford any favourite other than truth. To

constitute  reasonable  doubt,  it  must  be  free  from  an  over-emotional

response. Doubts must be actual and substantial doubts as to the guilt of the

32

accused persons arising from the evidence, or from the lack of it, as opposed

to  mere  vague  apprehensions.  A  reasonable  doubt  is  not  an  imaginary,

trivial or a merely possible doubt, but a fair doubt based upon reason and

common sense. It must grow out of the evidence in the case.

40. The concepts of probability, and the degrees of it, cannot obviously

be expressed in terms of units to be mathematically enumerated as to how

many of such units constitute proof beyond reasonable doubt. There is an

unmistakable  subjective  element  in  the  evaluation  of  the  degrees  of

probability and the quantum of proof. Forensic probability must, in the last

analysis,  rest  on  a  robust  common sense  and,  ultimately,  on  the  trained

intuitions of the Judge. While the protection given by the criminal process

to the accused persons is not to be eroded, at the same time, uninformed

legitimization  of  trivialities  would  make  a  mockery  of  administration  of

criminal justice. This position was illuminatingly stated in  State of U.P. v.

Krishna Gopal (1988 (4) SCC 302).

41. The  above  position  was  also  highlighted  in  Krishnan  and  Anr.  v.

State represented by Inspector of Police (2003 (7) SCC 56).

33

42. As the manner of disposal of the appeal leaves much to be desired, we

think it appropriate to remit the matter to the High Court to dispose of the

appeal  afresh.   Needless  it  has  to  analyse  the  conclusions  and  decide

whether any interference is called for and, if the answer is in the affirmative,

the reason therefore.    

43. The appeal is allowed.  

……………………………….J. (Dr. ARIJIT PASAYAT)

…………………………...…..J. (V.S. SIRPURKAR)

………………………………..J. (G.S. SINGHVI)

New Delhi, December 1, 2008   

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