REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1072 OF 2004

Suraj Singh  ..Appellant

Versus

State of U.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 Allahabad High Court allowing the appeal filed by

the State of U.P. questioning the judgment of acquittal passed by

learned  Additional  Sessions  Judge,  Special  Judge  (E.C.  Act),

Mainpuri in Sessions Trial No.169 of 1993. Two persons i.e. the

present appellant and his wife Smt. Kapoori Devi were tried for

offence punishable  under Section 302 read with Section 34 of

the Indian Penal Code, 1860 (in short the ‘IPC’) for the murder of

one Jagat Singh (hereinafter referred to as the ‘deceased’).  The

trial  Court directed acquittal  of  the appellant primarily on the

ground that there was discrepancy between the ocular evidence

and  the  medical  evidence,  independent  witnesses  were  not

examined. In appeal filed by the State, the High Court held that

while the acquittal of Smt. Kapoori  Devi (A-2) was correct, the

same  was  not  sustainable  so  far  as  the  present  appellant  is

concerned.  

2. Background facts in a nutshell are as follows:

The incident took place on 23.9.1992 at about 12.20 p.m. at

the house of the deceased Jagat Singh and the accused persons

situated in village Chhibkaria, P.S. Bhongaon, District Mainpuri.

The report  was lodged on 23.9.1992 at 1.45 p.m. by the eye-

witness Jaivir  Singh (PW-1-who was nephew of  the deceased).

The accused are also close relatives of the deceased. Suraj Singh

is son of Ram Sahai Yadav who was real brother of father of the

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deceased. Suraj Singh was a police constable and was posted at

Aligarh. He was in shadow duty of an Ex-M.L.A. On the day of

incident,  he  was  going  from  his  house  to  join  his  duty.  The

deceased  Jagat  Singh asked  him to  go  after  constructing  the

earth  partition  of  the  agricultural  plot.  Accused  Suraj  Singh

abused  him.  His  wife  Kapoori  Devi  exhorted  him  to  go  after

finishing him. Suraj Singh and his wife then climbed up their

roof. Suraj Singh fired two shots from his gun whereas his wife

Kapoori  Devi  fired three shots from a revolver which hit Jagat

Singh who died instantaneously. The incident was seen by Sant

Saran (PW.2) as also by Dafedar Singh, Gajraj Singh, Atar Sri-

wife  of  Jagat  Singh and other  villagers.  Consequent  upon the

registering of the case, investigation was taken up by S.S.I. S.K.

Dixit (PW.5.) The postmortem over the dead body of the deceased

was conducted by Dr. D.S.Rathore (PW.4) on 24.9.1992 at 1.45

P.M.  The  following  ante-mortem  injuries  were  found  on  his

person who aged about 50 years.

1. Lacerated wound 0.5 cm x 0.3 cm x muscle deep on front aspect of left ear pinna middle part.

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2. Firearm wound 0.5 cm x 0.3 bone deep on right and front aspect of upper part of nose 1.00 cm  below  root  of  nose,  underlying  nasal  bone fractured. Margins charred.

3. Lacerated  wound  1.00  cm  x  0.4  cm  x muscle  deep on outer and front aspect  of right upper arm, 11.00 cm above the right elbow joint.

4. Two firearm wounds 0.5 cm x 0.3 cm x skin deep anterior outer aspect  of  right upper,  arm, placed  3  cm apart,  just  above  the  right  elbow. Margins charred.

5. Firearm wound of entry 0.4 cm x 0.3 cm x muscle  deep  on  front  of  neck  2.5  cm  right  to midline just above the clavicle. Margins inverted and charred.

6. Firearm wound of entry 0.3 cm. x 0.3 cm. x muscle deep on right side of neck 3.00 cm away from injury No.5 just 3.00 cm above the clavicle. Margins charred and inverted.

7. Multiple firearm wounds of entry 0.4 cm x 0.3 cm x chest cavity deep to 0.4 cm x 0.4 cm muscle deep in size in an area of 7.00 cm x 6.00 cm on  front  of  chest  midline  on  both  sides  in middle part of front chest. Margins charred and inverted.

8. Firearm wound of entry 0.4 cm x 0.4 cm x chest cavity deep on lower part front and outer aspect of right side of chest 11.00 cm away from right  nipple,  at  7  O'clock  position.  Margins inverted and charred.

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On internal examination, two metallic pieces were recovered

from the  soft  tissues  of  the  neck,  two from left  ventricle,  one

pellet from right chest cavity and one from abdomen cavity. The

death  had  occurred  due  to  shock  and  haemorrhage  owing  to

ante-mortem injuries.

Apart from the medical and formal evidence including that

of  investigation,  the  prosecution  relied  upon  the  testimony  of

Jaivir Singh (PW-1) and Sant Saran (PW-2) as eye-witnesses. The

defence was of denial.

Trial  Court  held  that  there  were  discrepancies  and

accusations have not been established.  An appeal was filed by

the State.   

The High Court found that there was no discrepancy so far

as the medical evidence and the ocular evidence is concerned. It

was  also  held  that  non examination  of  other  persons  did  not

adversely  affect  the  credibility  of  the  evidence  tendered,  and

when  there  is  direct  evidence  of  eye  witnesses  the  alleged

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inconsistency relating to distance from which the gunshots were

fired  is  of  no  consequence  particularly  when  the  prosecution

version  relating  to  assault  by  guns  and  pistol  substantially

tallied  with  the  medical  evidence.  Accordingly,  appellant  was

found guilty of offence punishable  under Section 302 IPC and

sentenced to undergo imprisonment for life.  

3. In support of the appeal, learned counsel for the appellant

submitted  that  the  High  Court  had  not  kept  in  view  the

parameters of an appeal against acquittal. It  is submitted that

when two views  are  possible  on the  basis  of  the  evidence  on

record and the one favourable to the accused is taken by the trial

Court, same should not be disturbed.  

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

the  judgment  and submitted  that  the  conclusions  of  the  trial

Court were erroneous both on law and facts and, therefore, the

High Court was justified in interfering with the order of the trial

Court.

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5. In  view  of  rival  submissions  of  the  parties,  we  think  it

proper  to  consider  and clarify  the  legal  position first.  Chapter

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

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

Section 372 expressly declares that no appeal shall lie from any

judgment or order of a criminal court except as provided by the

Code or by any other law for the time being in force. Section 373

provides for filing of appeals in certain cases. Section 374 allows

appeals  from  convictions.  Section  375  bars  appeals  in  cases

where  the  accused  pleads  guilty.  Likewise,  no  appeal  is

maintainable in petty cases (Section 376). Section 377 permits

appeals by the State for enhancement of sentence. Section 378

confers  power  on  the  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

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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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6. Whereas Sections 379-380 cover special cases of appeals,

other sections lay down procedure  to be  followed by appellate

courts.

7. 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.

8. 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

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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.

9. 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.

10. 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.

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11. The first important decision was rendered by the Judicial

Committee of the Privy Council  in  Sheo Swarup v.  R. Emperor

(1934) 61 IA 398).   In  Sheo Swarup  the accused were acquitted

by the trial court and the local Government directed the Public

Prosecutor to present an appeal to the High Court from an order

of acquittal under Section 417 of the old Code (similar to Section

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

the High Court, it was contended on behalf of the accused that in

an  appeal  from an order  of  acquittal,  it  was  not  open  to  the

appellate court to interfere with the findings of fact recorded by

the trial Judge unless such findings could not have been reached

by him had there not been some perversity or incompetence on

his part. The High Court, however, declined to accept the said

view. It held that no condition was imposed on the High Court in

such appeal. It accordingly reviewed all the evidence in the case

and  having  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

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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.

12. 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.”

13. 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.”

14. 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

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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)

15. 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.

16. 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

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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.

17. 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)   

18. 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

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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.

19. 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”.

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20. 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)   

21. 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

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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)   

22. 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.”  

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        (emphasis supplied)

23. 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

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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.”

24. 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

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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)

21

25. 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.”  

26. 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

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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

23

the  delinquent  free  and  chopping  the  logic  of preponderant  probability  to  punish  marginal innocents.”

(emphasis supplied)

27. 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:

“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

24

mentioned by the Privy Council in  Sheo Swarup case.  Occasionally  phrases  like  ‘manifestly illegal’,  ‘grossly  unjust’,  have  been  used  to describe  the  orders  of  acquittal  which  warrant interference.  But,  such  expressions  have  been used  more  as  flourishes  of  language,  to emphasise the reluctance of the appellate court to  interfere  with  an  order  of  acquittal  than  to curtail the power of the appellate court to review the  entire  evidence  and  to  come  to  its  own conclusion. In some cases (Ramaphupala Reddy v.  State of  A.P.,  (AIR 1971 SC 460)  Bhim Singh Rup Singh v.  State of Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in  Sanwat Singh  case may  be  added  the further  principle  that  ‘if  two  reasonable conclusions can be reached on the basis of the evidence  on  record,  the  appellate  court  should not disturb the finding of the trial court’. This, of course, is not a new principle. It stems out of the fundamental  principle  of  our  criminal jurisprudence that the accused is entitled to the benefit  of  any  reasonable  doubt.  If  two reasonably  probable  and evenly  balanced views of  the  evidence  are  possible,  one  must necessarily concede the existence of a reasonable doubt.  But,  fanciful  and  remote  possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in  favour  of  the  accused  must  be  as  nearly reasonably probable  as that against him. If  the preponderance  of  probability  is  all  one  way,  a bare  possibility  of  another  view  will  not  entitle the accused to claim the benefit of any doubt.  It is,  therefore,  essential  that  any  view  of  the evidence  in  favour  of  the  accused  must  be reasonable  even  as  any  doubt,  the  benefit  of which  an  accused  person  may  claim,  must  be

25

reasonable.”

          (emphasis supplied)

28. 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.”

29. 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

26

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.”   

30. 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

27

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”.  

31. 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

28

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.”

32. 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”.  

29

whether  any  of  the  accused  committed  any offence or not”.  

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

stated:  

“8.  While  deciding  an  appeal  against  acquittal, the power of the appellate court is no less than the  power  exercised  while  hearing  appeals against conviction. In both types of appeals, the power  exists  to  review  the  entire  evidence. However,  one  significant  difference  is  that  an order of acquittal will not be interfered with, by an  appellate  court,  where  the  judgment  of  the trial  court  is  based  on  evidence  and  the  view taken  is  reasonable  and  plausible.  It  will  not reverse  the  decision  of  the  trial  court  merely because  a  different  view  is  possible.  The appellate court will also bear in mind that there is  a presumption of  innocence  in favour of  the accused  and the  accused  is  entitled  to  get  the benefit  of  any  doubt.  Further  if  it  decides  to interfere,  it  should  assign  reasons  for  differing with the decision of the trial court.”

                         (emphasis supplied)

34. 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:

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

reappreciate  and reconsider the evidence upon which the

order of acquittal is founded.

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

limitation, restriction or condition on exercise of such power

and an appellate court on the evidence before it may reach

its own conclusion, both on questions of fact and of law.

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

compelling  reasons”,  “good  and  sufficient  grounds”,  “very

strong  circumstances”,  “distorted  conclusions”,  “glaring

mistakes”, etc. are not intended to curtail extensive powers

of an appellate court in an appeal against acquittal. Such

phraseologies  are  more  in  the  nature  of  “flourishes  of

language” to emphasise the reluctance of an appellate court

to interfere 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

31

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.

35. A  person  has,  no  doubt,  a  profound  right  not  to  be

convicted of an offence which is not established by the evidential

standard  of  proof  beyond  reasonable  doubt.  Though  this

standard is  a higher standard,  there  is,  however,  no absolute

standard. What degree  of  probability  amounts to “proof”  is an

exercise  particular  to  each  case.  Referring  to  the

interdependence of evidence and the confirmation of one piece of

32

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.”

36. 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

33

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.

37. 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).

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38. The above position was highlighted in Krishnan and Anr. v.

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

39. So far as discrepancy between ocular evidence and medical

evidence  is concerned,  this Court in  Kamaljit Singh v.  State of

Punjab (2003 (12) SCC 155) observed as under:  

“It  is  trite  law  that  minor  variations  between medical evidence and ocular evidence do not take away  the  primacy  of  the  latter.  Unless  medical evidence in its term goes so far as to completely rule  out  all  possibilities  whatsoever  of  injuries taking  place  in  the  manner  stated  by  the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See  Solanki Chimanbhai Ukabhai v.  State of  Gujarat (1983 (2)  SCC 174). The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal (1988 (4)  SCC  302).  When  the  acquittal  by  the  trial court  was  found  to  be  on  the  basis  of unwarranted  assumptions  and  manifestly erroneous  appreciation  of  evidence  by  ignoring valuable  and  credible  evidence  resulting  in serious  and  substantial  miscarriage  of  justice, the High Court cannot in this case be found fault with for its well-merited interference.   

35

40. Coming to the plea that the medical evidence is at variance

with  ocular  evidence,  it  has  to  be  noted  that  it  would  be

erroneous to accord undue primacy to the hypothetical answers

of medical witnesses to exclude the eyewitnesses’ account which

had to be tested independently and not treated as the “variable”

keeping the medical evidence as the “constant”.

41. It  is  trite  that  where  the  eyewitnesses’  account  is  found

credible and trustworthy, medical opinion pointing to alternative

possibilities  is  not  accepted  as  conclusive.  Witnesses,  as

Bentham  said,  are  the  eyes  and  ears  of  justice.  Hence  the

importance  and  primacy  of  the  quality  of  the  trial  process.

Eyewitnesses’  account  would  require  a  careful  independent

assessment and evaluation for its credibility which should not be

adversely  prejudged  making  any  other  evidence,  including

medical  evidence,  as  the  sole  touchstone  for  the  test  of  such

credibility.  The  evidence  must  be  tested  for  its  inherent

consistency and the inherent probability of the story; consistency

with  the  account  of  other  witnesses  held  to  be  creditworthy;

36

consistency  with  the  undisputed  facts,  the  “credit”  of  the

witnesses; their performance in the witness box; their power of

observation  etc.  Then  the  probative  value  of  such  evidence

becomes  eligible  to  be  put  into  the  scales  for  a  cumulative

evaluation.

42. In the instant case, the trial Court erroneously concluded

that  the  medical  evidence  was  at  variance  with  the  ocular

evidence. The oral testimony is not at variance with the medical

evidence as rightly observed by the High Court.  

43. This  Court  in  Lila  Ram (D)  thr.  Duli  Chand v.  State  of

Haryana  and  Anr.  (JT  1999  (6)  SC  274)  held  that  it  was

immaterial  whether  one  or  two  gunshots  were  fired.  Such

contradiction  does  not  travel  to  the  root  of  the  nature  of  the

offence. The discrepancy in ocular and medical evidence  vis-a-

vis distance cannot affect the credibility of evidence. In  State of

U.P. v.  Suhar Singh (AIR  1987  SC 191)  it  was  observed  that

when  there  is  direct  evidence  of  eye  witness  available  the

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inconsistency relating to distance from which the gunshots were

fired  is  of  no  consequence  when  the  prosecution  evidence

pertaining to assault by guns and pistol substantially tallied with

the medical evidence. The present case, belongs to that category.

Additionally,  there  was  no  discrepancy  pointed  out  in  the

evidence of eye witnesses. Merely because PW-1 and PW-2 were

close relatives of the deceased, that cannot be a ground to affect

credibility of their evidence.  Looked at from any angle there is no

merit in the appeal which is accordingly dismissed.  

……. ….………………..……….J. (Dr. ARIJIT PASAYAT)

……..…………..………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, July 24, 2008

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