REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  254 OF 2002

State of Punjab …Appellant

Versus

Sukhchain Singh & Anr. …Respondents

with

CRIMINAL APPEAL NO.  587 OF 2002

JUDGMENT

Dr. ARIJIT PASAYAT, J.

CRIMINAL APPEAL NO.  254 OF 2002

1. Challenge in this appeal is to the order of a Division Bench of the Punjab

and  Haryana  High  Court  upholding  the  acquittal  of  the  respondents.   The

responders were respondents in Criminal Appeal No. 537 DBA of 1997.  The

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High Court heard four appeals but we are concerned with the two appeals only

i.e. Criminal appeal no. 537 DBA of 1997 and . Criminal appeal No. 170- DB

of 1997 (Paramjit Singh v.  State of Punjab) and disposed the appeals along

with two other appeals.  Respondents faced trial along with two others namely

Mohan  Singh  and  Paramjit  Singh  for  alleged  commission  of  offences

punishable  under  Sections  148,  302,307,326,325,323/302  read  with  Section

149,  307  read  with  Section  149,  326/149,  325  read  with  Section  149  and

323/149 of the Indian Penal Code, 1960 (in short the ‘IPC’).  Another accused

Harbhajan Singh  died during trial.

3. The trial court held that the accusations were not established so far as the

present  respondents  are  concerned  but  found  the  two  co-accused  persons

Mohan Singh and Paramjit Singh guilty of various offences.  Criminal Appeal

No.  537  DBA of  1997  was  filed  by  the  State  questioning  acquittal  of  the

respondents.  The connected Criminal appeal No. 587 of 2002 has been filed by

the accused Paramjit Singh who was appellant in Criminal Appeal No. 170 DB

of  1997 before the High Court.

Prosecution  version  leading  to  the  trial  of  the  accused  persons  is  as

follows:

On 6th September, 1987 at about 6.30 PM Jit Singh and Jaswant Singh

(both  deceased)  alongwith  Nishan  Singh  (P.W.7),  Ghula  Singh  (P.W.8),

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Swaran Singh and Bakhshish Singh were sitting near the office of the Truck

Union, Khanauri Mandi when accused Mohan Singh armed with a SBBL gun,

Paramjit Singh, Sukhchain Singh and Swaran Singh armed with gandasas and

Harbhajan Singh unarmed came to the  spot in Truck No. HYA 6595,  being

driven by Harbhajan Singh. After parking the truck at a distance of 6-7 kadams

from the Cabin,  the accused got  down and raised a lalkara  that  they would

teach them a lesson for being instrumental in making them lose the elections

held  to  the  various  offices  of  the  Truck  Union.  Mohan  Singh  accused

thereupon fired  two shots  at  Jit  Singh  Singh and Ghula  singh.   Harbhajan

Singh  then  snatched  the  gun  from Mohan  Singh  and  fired  one  shot  hitting

Jaswant  Singh  on  his  arm  and  back.  Swaran  Singh,  Paramjit  Singh  and

Sukhchain Singh accused also caused injuries to Swaran Singh, Nishan Singh

and Ghula Singh. All the accused thereafter re-boarded the truck and escaped

from the spot. Jit  Singh  and  Jaswant  Singh  died  almost  immediately

whereas  Ghula  Singh,  who  was  in  a  serious  condition,  was  taken  to  the

Hospital by some persons who had come to the spot whereas Nishan Singh and

Swaran Singh left  for Police  Post,  Khanauri.  Along the way, however,  they

came across a police party headed by ASI Shamsher Singh(P.W.12).  Nishan

Singh made his statement to him at 8.00 P.M. and on its basis, the formal F.I.R

was registered at Police Station, Moonak, 25 kms away at 9.30 P.M.; with the

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special report being delivered to the Iliaqa Magistrate at Sunam at 2.30 AM on

September 7,1987.  ASI Shamsher Singh (P.W.12) also went  to the place of

occurrence and made the necessary inquiries and amongst other articles picked

up  three  spent  cartridges  cases  of  .12  bore.  The  accused  were  arrested  on

12.9.1987 and Truck No. HYA-6595 belonging to Harbhajan Singh was taken

into possession. Mohan Singh accused also produced his .12 bore gun and two

live cartridges. The spent cartridges and the gun belonging to Mohan Singh

accused were sent to the Forensic Science Laboratory and the Laboratory in its

report (Exh.PRR) opined that the said cartridges had been fired from the gun in

question. On the completion of the investigation, the accused were charged for

offences  punishable  under  section  302  and  other  offences  of  IPC  as  noted

above and the Arms Act, 1959  (in short the ‘Arms Act’) and as they pleaded

not guilty, were brought to trial.

4. Before  the  High  Court  it  was  contended  by  accused,  who  were

convicted, that the FIR was lodged belatedly and on that basis the prosecution

version was vulnerable.  There was no motive for five of the accused persons to

come to the spot fully armed and cause the death of two persons and injuries to

three persons.  The State questioned correctness of acquittal on the ground that

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the  conclusions  of  the  trial  court  were  erroneous,  the  acquitted  persons

supported the acquittal.

5.  High  Court  after  noticing  the  argument  came  to  the  following

conclusions.

“It is true that there appears to be some delay in the lodging of the

FIR  as  the  special  report  had  been  delivered  to  the  Illaqa

Magistrate  at Sunam almost 6-7 hours after its registration. We

are, however, of the opinion that in the light of the fact that there

were  three  injured  eye  witnesses  including  Nishan  Singh  and

Ghula Singh, the fact that there was some delay in the lodging of

the FIR can be over-looked. These two eye witnesses had clearly

stated  to  the  motive  far  the  offence  and  detailed  the  actual

incident. It has come in their  evidence  that Bhupinder Singh and

Harbhajan Singh had fought the elections to the Truck Union and

the complainant party was helping Bhupinder Singh whereas the

accused  were  in  favour  of  Harbhajan  Singh.  The  fact  that  the

election  were  held  and  Harbhajan  Singh  and  Bhupinder  Singh

were the candidates  has not  been  denied.  We also find that  the

members  of  the  accused  party  were  closely  related  to  the  each

other and it was on this account that they had come together to

Khanauri Mandi to avenge a perceived insult. The trial court itself

had  been  conscious   of  the  fact  that  there  were  two  stamped

witnesses who had suffered serious injuries on their person, but in

view of the fact that there was some delay in the lodging of the

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FIR. , it had chosen to acquit Swaran Singh and Sukhchain Singh

accused. We have also considered  Mr. Narula’s argument with

regard to the culpability of Paramjit Singh. As per the evidence of

Nishan Singh(P.W.-7),  accused Paramjit  Singh,  who was armed

with a Gandasa, had given a blow hitting Swaran Singh on his left

arm.  It  is  true  that  Swaran  Singh  has  not  been  examined  as  a

witness but from the eye witness account as also the statement of

Dr. Gurcharan Singh (P.W.-5), it is clear that there was one incised

wound measuring 3.5cm x 1 cm and one contusion 2 cm wide on

the lateral aspect of the abdominal wall on his person Dr.

H.L.Garg (DW 2), had also X/rayed the injuries of Swaran Singh

but  no bone injury had been detected.  We find that  the injuries

suffered  by  Swaran  Singh  have  been  reflected  in  the  medical

report.  We therefore find that the involvement of Paramjit Singh

clearly stands established.”

6. Learned counsel for the State submitted that the trial court and the High

Court  clearly  lost  sight  of  the  relevant  facts  and  therefore  the  judgment  is

vulnerable.

7. In Criminal Appeal  No. 587 of 2002, learned counsel for the accused

Paramjit Singh submitted that when co-accused have been acquitted there is no

reason for the high Court to uphold the conviction so far as Paramjit Singh is

concerned.  

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8. In response learned counsel for the respondents-State submitted that the

High Court was justified in upholding  the conviction of the appellant.

9. It would be appropriate to consider and clarify the legal position first.

Chapter XXIX (Sections 372-394) of the Code of Criminal  Procedure, 1973

(hereinafter  referred  to  as  “the  Code”)  deals  with  appeals.  Section  372

expressly declares that  no appeal  shall  lie  from any judgment  or order  of  a

criminal court except as provided by the Code or by any other law for the time

being  in  force.  Section  373  provides  for  filing  of  appeals  in  certain  cases.

Section 374 allows appeals from convictions. Section 375 bars appeals in cases

where the accused pleads guilty. Likewise, no appeal is maintainable in petty

cases (Section 376). Section 377 permits appeals by the State for enhancement

of sentence. Section 378 confers power on the State to present an appeal to the

High Court from an order of acquittal. The said section is material and may be

quoted in extenso:

“378.  Appeal  in  case  of  acquittal.—(1)  Save  as  otherwise provided  in  sub-section  (2)  and  subject  to  the  provisions  of sub-sections  (3)  and  (5),  the  State  Government  may,  in  any case, direct the Public Prosecutor to present an appeal to the High  Court  from an  original  or  appellate  order  of  acquittal passed by any court  other than a High Court,  or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police

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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).

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

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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 Code (appeal  in case of acquittal)

quoted above,  makes it  clear  that  no restrictions  have  been imposed by the

legislature on the powers of the appellate court in dealing with appeals against

acquittal.  When  such  an  appeal  is  filed,  the  High  Court  has  full  power  to

reappreciate, review and reconsider the evidence at large, the material on which

the order  of  acquittal  is  founded and to  reach its  own conclusions  on  such

evidence. Both questions of fact and of law are open to determination by the

High Court in an appeal against an order of acquittal.

12. It cannot, however, be forgotten that in case of acquittal, there is a double

presumption in favour of  the accused.  Firstly,  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,

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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  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

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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 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:  

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“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.”

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

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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 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:

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

    (emphasis supplied)   

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

that it  was well  established that in an appeal under Section 417 of the (old)

Code, the High Court had full power to review the evidence upon which the

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

presumption of innocence of the accused was further reinforced by his acquittal

by the trial court, and the findings of the trial court which had the advantage of

seeing the witnesses and hearing their evidence could be reversed only for very

substantial and compelling reasons.

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

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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 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

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entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It  is  also  well  settled  that  the  court  of  appeal  has  as  wide powers  of  appreciation  of  evidence  in  an  appeal  against  an order of acquittal as in the case of an appeal against an order of conviction,  subject  to  the  riders  that  the  presumption  of innocence  with  which  the  accused  person  starts  in  the  trial court  continues  even  up  to  the  appellate  stage  and  that  the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If  the  appellate  court  reviews  the  evidence,  keeping  those principles  in  mind,  and  comes  to  a  contrary  conclusion,  the judgment cannot be said to have been vitiated.”

           (emphasis supplied)   

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)

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

Bench considered almost all leading decisions on the point and observed that

there  was  no  difficulty  in  applying  the  principles  laid  down  by  the  Privy

Council and accepted by the Supreme Court. The Court, however, noted that

appellate courts found considerable difficulty in understanding the scope of the

words “substantial and compelling reasons” used in certain decisions. It was

observed inter-alia as follows:

“This Court obviously did not and could not add a condition to Section 417 of the Criminal Procedure Code. The words were intended to  convey the idea that  an appellate  court  not  only shall  bear  in  mind  the  principles  laid  down  by  the  Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong.”

The Court concluded as follows:   “9. The foregoing discussion yields the following results:  (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down  in  Sheo  Swarup  case afford  a  correct  guide  for  the 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

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bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a  conclusion  on  those  facts,  but  should  also  express  those reasons in its judgment, which lead it to hold that the acquittal was not justified.”

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

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

earlier decisions, it was observed as follows:

“17. In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the  presumption  of  innocence  is  reinforced  by  the  order  of acquittal and so, ‘the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can  be  reversed  only  for  very  substantial  and  compelling reasons’:  vide  Surajpal  Singh v.  State  (1952  SCR  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

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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)

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:

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“6. Even at this stage we may remind ourselves of a necessary social  perspective  in  criminal  cases  which  suffers  from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence  and  to  the  soothing  sentiment  that  all  acquittals  are always  good  regardless  of  justice  to  the  victim  and  the community,  demand  especial  emphasis  in  the  contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro’ the web of our law should not be stretched morbidly to embrace every  hunch,  hesitancy  and  degree  of  doubt.  The  excessive solicitude reflected in the attitude that a thousand guilty men may go  but  one  innocent  martyr  shall  not  suffer  is  a  false dilemma.  Only  reasonable  doubts  belong  to  the  accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person 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)

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

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

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

it was stated as follows:

“9.  The principles  are  now well  settled.  At  one  time it  was thought  that  an  order  of  acquittal  could  be  set  aside  for ‘substantial  and compelling reasons’ only and courts  used to launch  on  a  search  to  discover  those  ‘substantial  and compelling  reasons’.  However,  the ‘formulae’  of  ‘substantial and  compelling  reasons’,  ‘good  and  sufficiently  cogent reasons’  and  ‘strong  reasons’  and  the  search  for  them were abandoned as a result  of the pronouncement of this Court  in Sanwat  Singh v.  State  of  Rajasthan  (1961)  3  SCR  120.  In Sanwat  Singh  case this  Court  harked  back  to  the  principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court  has consistently recognised the right  of the appellate court to 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

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evidence on record, the appellate court should not disturb the finding  of  the  trial  court’.  This,  of  course,  is  not  a  new principle.  It  stems  out  of  the  fundamental  principle  of  our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced  views  of  the  evidence  are  possible,  one  must necessarily concede the existence of a reasonable doubt.  But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt.  It is,  therefore, essential that any  view  of  the  evidence  in  favour  of  the  accused  must  be 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.”

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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 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

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order of acquittal is that the Court has full powers to review the evidence  upon  which  an  order  of  acquittal  is  based  and generally  it  will  not  interfere  with  the  order  of  acquittal because  by passing  an  order  of  acquittal  the  presumption  of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in  criminal  case  is  that  if  two  views  are  possible  on  the evidence adduced in the case, one pointing to the guilt of the accused  and  the  other  to  his  innocence,  the  view  which  is favourable  to  the  accused  should  be  adopted.  Such  is  not  a jurisdiction  limitation  on  the  appellate  court  but  judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may 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

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reversing  an  order  of  acquittal  to  examine  and  discuss  the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.”

35. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court

observed:  

“21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption  of  innocence  of  the  accused  is  further strengthened  by  acquittal.  The  golden  thread  which  runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his  innocence,  the  view which  is  favourable  to  the  accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may 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

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interfered with,  by an appellate court, where the judgment of the  trial  court  is  based  on  evidence  and  the  view  taken  is reasonable and plausible. It will not reverse the decision of the trial  court  merely  because  a  different  view  is  possible.  The appellate  court  will  also  bear  in  mind  that  there  is  a presumption  of  innocence  in  favour  of  the  accused  and  the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.”

                         (emphasis supplied)

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

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

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

acquittal were culled out:

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

reconsider the evidence upon which the order of acquittal is founded.

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

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

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

fact and of law.

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

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

“distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail

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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

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

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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 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

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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 by Venkatachaliah, J. (as His Lordship then was) in State

of U.P. v. Krishna Gopal (1988 (4) SCC 302).

41. The above position was highlighted in State of U.P. v. Awdhesh (2008

(9) JT 591).

42. Therefore on considering the reasonings recorded by the trial court and

High Court we find no scope for interference with the order of acquittal passed

by the trial court which was affirmed by the High Court.   

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43. Coming to the appeal filed by the accused Paramjit Singh, we find that

the High Court  has indicated the reasons  as  to  why he stood on a different

footing  and  how  accusations  have  been  fully  established  so  far  as  he  is

concerned.

44. We  find  no  infirmity  in  the  view  of  the  High  Court  to  warrant

interference with the impugned judgment.   

45. Both the appeals fail and are accordingly dismissed.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (C.K. THAKKER)

……………………………………J. (LOKESHWAR SINGH PANTA)

New Delhi:  November 7, 2008

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