22 December 1955
Supreme Court


Case number: Appeal (crl.) 64 of 1955






DATE OF JUDGMENT: 22/12/1955


CITATION:  1956 AIR  217            1955 SCR  (2)1285

ACT: Appeal against Acquittal--Scope of--Powers of  Court-Guiding principles--Code  of Criminal Procedure (Act V of 1898),  s. 417.

HEADNOTE:   Per BOSE, and CHANDRASEKHARA AIYAR JJ. (VENKATKRAMA  AYYAR J.  dissenting).   It is well settled that  the  High  Court should  not set aside an order of acquittal under s. 417  of the  Code  of Criminal Procedure simply because  it  differs from the trial Court as to the appreciation of the evidence; there  must be substantial and compelling reasons for  doing so.  Where the trial Court takes a reason. able view of  the facts  of the case, interference is not  justifiable  unless there are really strong reasons for holding otherwise.   Amar  Singh  v. State of Punjab ([1953]  S.C.R.  418)  and Surajpal Singh v. State ([1952] S.C.R. 193), referred to.    The accused in a criminal case must be given the  benefit of  every reasonable doubt and, therefore, when he offers  a reasonable  explanation of his conduct, although  he  cannot prove  it,  that explanation should ordinarily  be  accepted unless the circumstances indicate that it is false.   Consequently,  in a case where an accused person,  charged under  SS. 302 and 447 of the Indian Penal Code,  repudiated his  confession at the earliest opportunity as  having  been made under Police threats administered to him at night while in  jail  custody and there was evidence to  show  that  the Police  had  access to him there, and there was  nothing  to displace  his statement that he was threatened by them,  the finding  of the Sessions Judge that the confession  was  not voluntary  in character was fair and reasonable and  in  the absence  of any compelling reason the High Court should  not have set aside the order of acquittal. 1286 As  the  evidence otherwise was insufficient  to  warrant  a conviction the accused was acquitted.   Per  VENKATARAMA AYYAR J. This is not a case in which  the Supreme  Court  should  interfere  under  Art.  136  of  the Constitution.   The Constitution by  specifically  providing for an appeal on facts under Art. 134(1) intended to exclude it under Art. 136 and like the Privy Council this Court will



not  function  as  a further Court of  appeal  on  facts  in criminal cases.  The fact that the appeal in the High Court was one  against an  order of acquittal makes no difference as the powers  of an  appellate  Court are the same in  all  appeals,  whether against acquittal or against conviction.  Pritam Singh v. The State ([1950] S.C.R. 453), Sheo  Swarup v.  King-Emperor ([1934] L.R. 61 I.A. 398) and Nur  Mohammad v. Emperor (A.I.R. 1945 P.C. 151), relied on.  The  expression  "compelling  reasons"  used  in   Surajpal Singh’s case should be read only in the context of that case and  should  not  be treated as a rigid  formula  so  as  to restrict  the  powers of the Court, or the right  of  appeal conferred  on the State by s. 417 of the Code or to place  a judgment of acquittal in a position of vantage and give  the accused a protection which the law does not afford to  them. Such  a formula can be of use only as guiding principle  for the appellate Courts in deter-mining questions of fact.   Surajpal   Singh  v.  The  State  ([1952]   S.C.R.   193), considered.   Consequently,  the findings arrived at by the  High  Court were not open to review by this Court under Art. 136 of  the Constitution  and  as  there was  evidence  apart  from  the retracted  confession to support the view, it had  taken  on merits, the appeal must be dismissed.

JUDGMENT:  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 64  of 1955.   On  appeal  by special leave from the judgment  and  order dated the 27th February 1954 of the Saurashtra High Court at Rajkot in Criminal Appeal No. 108 of 1953 arising out of the judgment and order dated the 5th March 1953 of the Court  of Sessions  Judge, Halar Division in Sessions Case -No. 26  of 1952.  V.  N. Sethi, for the appellant.  R.  Ganapathy Iyer and R. H. Dhebar, for the respondent. 1955.  December 22. BOSE J.-The only question in this appeal is whether the High Court bad in mind the principles 1287 we  have enunciated about interference under section 417  of the Criminal Procedure Code when it allowed the appeal filed by the State against the acquittal of the appellant.  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: Amar Singh  v.  State  of Punjab(1) and if the trial Court takes a reasonable view  of the facts of the case, interference under section 417 is not justifiable  unless  there  are really  strong  reasons  for reversing that view: Surajpal Singh v. State(2).   The appellant was prosecuted under sections 302 and 447 of the Indian Penal Code for the murder of Aher Jetha Sida.  It is not necessary at the moment to set out the facts.  It  is enough to say that the High Court based its conviction on  a retracted  confession plus certain circumstances  which  the learned Judges regarded as corroborative.   The learned Sessions Judge excluded the confession on  the ground that it was neither voluntary nor true.  The  learned Judge’s  reasoning  about its falsity is weak.   We  do  not think  there is material on which a positive  finding  about its  falsity can be reached but *hen he says that he is  not



satisfied that it was made voluntarily we find it impossible to  hold that is a view which a judicial mind acting  fairly could not reasonably reach.   The  facts  about that are as follows.   The  offence  was committed  during the night of the 18th/19th May 1952.   The police  were  informed  on the 19th morning  at  9-30.   The police  station  was only 4 miles distant and  they  started investigation  immediately.  The appellant was  arrested  on the  20th.  He says in his examination under  section,  342, Criminal Procedure Code, that three other persons were  also arrested  but were later released.  They are Bhura,  Dewayat and Kana.  The investigating officer was not examined, so he could  not  be asked about this and the point could  not  be developed further.  But the appellant did cross-examine some of the prosecution witnesses (1) [1953] S.C.R. 418, 423. (2) [1952] S.C.R. 193, 201, 1288 about  this and elicited contradictory replies.  Kana,  P.W. 4, said-   "I  was  not arrested.  Dewayat,  Barat  Lakhmansingh  was arrested first........ All the three of us were released the same evening.  We were not put under arrest at all".    Dewayat,  P.W.  5, denied that either he or  any  of  the others were arrested and Maya, P.W. 15, said the same  thing but  Meraman, P.W. 11, insisted that Dewayat  was  arrested. In  the absence of the SubInspector it is difficult  to  say definitely that the appellant is wrong.  It is evident  that the others were at least suspected, especially as one of the points  made  against  the appellant is  that  he  was  seen sharpening an axe on the evening of the murder and  Meraman, P.W. II, says that not only was the appellant sharpening  an axe  but so was Dewayat.  If this was a matter of  suspicion against  the appellant it must equally have been so  against Dewayat  and accordingly there is nothing improbable in  the appellant’s statement about these other arrests; and as  the SubInspector was not there to clear up the matter it is only fair to accept what the appellant says.  The  appellant  was sent to a Magistrate at 8 p.m.  on  the 21st  for the recording of a confession but  the  Magistrate did not record it till the 3rd of June.  He was examined  as P.W.  21 and explained that be gave the appellant  ten  days for  reflection.   The  length of time  is  unusual  but  no objection about its fairness to the accused could reasonably have  been  raised  bad it not been for the  fact  that  the judicial  lock-up  is in charge of a police guard  which  is under the direct control, orders and supervision of the very SubInspector  who  had conducted the investigation  and  had earlier  suspected and, according to the  accused,  actually arrested three other persons; and two of them are now called as  prosecution  witnesses to depose against  the  appellant about   a  matter  on  which  the  prosecution   lay   great importance,  namely  the sharpening of an axe.   The  danger that  they  might  exaggerate their stories  or  give  false evidence  in their anxiety to avert further  suspicion  from themselves is 1289 one that cannot be overlooked.   But  apart  from  that.  This is the  description  of  the judicial  look-up  which  the Magistrate  who  recorded  the confession (P.W. 21) gives us:   "A  police  guard  is  on 24 hours  duty  at  the  Bhanwad Judicial  lock-UP.   The prisoner is so  placed  within  the compound  wall that he can see the police all the  24  hours through  the bars and can talk.  These police  officers  are



under  the  police  Sub-Inspector.  A  peon  is  working  as warder.  He stays there on duty by day.  At night he is  not there.   Clerk  Jailor does not remain present there.   The  police lock-up  is within the ail itself.  Inside the jail gate  is the police lock-up.  The police can go into the police lock- up when they choose".   Now  the  appellant  repudiated  his  confession  at   the earliest  opportunity.   He  told the  Committing  Court  on 12-12-1952 in a written statement that-   "After  my  arrest by the police I was sent to  jail.   At night   time  the  police,  having  arrived  at  the   jail, threatened  me  to  make confession  before  Court  as  they directed.   The police frightened me with beating if  I  did not  confess.  As a result of which, through fright, I  have made a false confession as directed by the police and  which I now deny".   And  in  his  examination  under  section  342,   Criminal Procedure Code, he said-  "I  have  made  the  confession  because  the  police  were threatening to beat me in the jail.   He  repeated these statements in the Sessions  Court.   He said he was beaten at the time of his arrest and then  after he had been sent to the jail he said-   "I  was daily threatened.  They said ’confess the  offence of murder.  We shall get you on remand.  You will live as an impotent man’.  On the morning of the 3rd date, they took me to  a big police officer after  administering  extraordinary threats.    Only  now  I  come  to  know  that  he  is   the Magistrate"..,   Now it may be possible to take two views of this statement but there are two important factors in every criminal  trial that weigh heavily in favour of an accused person,: I one is that the accused is entitled 1290 to the benefit of every reasonable doubt and the other.,  an off-shoot of the same principle, that when an accused person offers  a reasonable explanation of his conduct, then,  even though   be  cannot  prove  his  assertions,   they   should ordinarily  be  accepted unless the  circumstances  indicate that  they are false.  What the appellant said in this  case is  not  impossible;  such  things  do  happen  and  it   is understandable   that  the  police,  frustrated   in   their endeavour  to  find the culprit among three  other  persons, should make an all out endeavour to make sure of the fourth. We  do not say that happened here.  But that it  might  have happened  is obvious, and when the police absent  themselves from  the  witness  box and  forestall  attempts  at  cross- examination,  we  find it impossible to hold  that  a  judge acting  judicially,  and  hearing  in  mind  the   important principles that we have outlined above, can be said to  have reached  an  unreasonable or an unfair  conclusion  when  he deduces from these circumstances that there is a  reasonable probability  that  the appellant’s story is  true  and  that therefore the confession was not voluntary.   The  only reason that the learned High Court  Judges  give for displacing this conclusion is that    "in  Saurashtra........ though judicial and police  lock- ups  are placed under a common guard the  judicial  lock-ups are  in charge of Magistrates and are looked after by  their clerks and peons, who are assigned the duties of jailors and warders respectively" and they conclude-    "It  is therefore difficult to say that the police  could have effectively threatened him".   But what the learned Judges overlook is the fact that this



control  is only effective during the day and that at  night neither the peon nor the clerk is there; and even during the day  the "clerk-cum-jailor does not remain  present  there". The  appellant said in his written statement that "at  night time the police, having arrived at the jail, threatened  me, etc".   There  is  nothing on the record  to  displace  this statement.   Had  the Sub-Inspector or some  policeman  been examined as a witness and had the appellant omitted to 1291 cross-examine  him  about this, that might  have  raised  an inference   that   what  the  accused  said  was   only   an afterthought.  But here we find that this defence about  the involuntary  nature of the confession due to threats by  the police  was  raised at the outset, even  in  the  Committing Magistrate’s Court, and was persisted in throughout and  the appellant  did  what he could to build up this part  of  his case  by cross examining the only official witness  who  did appear,  namely the Magistrate who recorded the  confession; and  he  succeeded  in establishing  that  there  was  ample opportunity  for  coercion and threat.  The fact  that  this defence  was raised in the Committal Court should  have  put the  prosecution on its guard and the absence of  refutation in  the Sessions Court is a matter that can legitimately  be used in the appellant’s favour.  In the circumstances, we do not  think  the  High Court has  squarely  met  the  learned Sessions Judge’s reasoning and shown that there are  compel- ling reasons for holding that he was wrong; on the contrary, the learned Sessions Judge’s hesitation is grounded on  well established judicial principles.   Now  the  law is clear that a confession  cannot  be  used against an accused person unless the Court is satisfied that it  was voluntary and at that stage the question whether  it is  true  or false does not arise.  It is abhorrent  to  our notions of justice and fair play, and is also dangerous,  to allow a man to be convicted on the strength of a  confession unless  it is made voluntarily and unless he  realises  that anything he says may be used against him; and any attempt by a  person  in  authority to bully a  person  into  making  a confession   or  any  threat  or  coercion  would  it   once invalidate it if the fear was still operating on his mind at the time he makes the confession and if it "would appear  to him reasonable for supposing that by making it he would gain any  advantage  or avoid any evil of a  temporal  nature  in reference to the proceedings against him": section 24 of the Indian  Evidence  Act.   That  is why  the  recording  of  a confession  is hedged around with so many safeguards and  is the 163 1292 reason  why  magistrates  ordinarily  allow  a  period   for reflection  and  why an accused person is remanded  to  jail custody  and  is put out of the reach of  the  investigating police  before he is asked to make his confession.  But  the force  of  these precautions is destroyed when,  instead  of isolating  the accused from the investigating police, he  is for all practical purposes sent back to them for a period of ten  days.   It can be accepted that this was done  in  good faith  and we also think that the police acted  properly  in sending the appellant up for the recording of his confession on  the  21st;  they could not have  anticipated  this  long remand to so-called "jail custody".  But that is hardly  the point.   The fact remains that the remand was made and  that opened up the very kind of opportunities which the rules and prudence  say should be guarded against; and, as the  police are  as  human as others, a reasonable apprehension  can  be



entertained  that they would be less than human if they  did not avail themselves of such a chance.   If  the confession is excluded, then there is not, in  our opinion, sufficient evidence against the appellant on  which a conviction can be based.   It will now be necessary to set out the facts.   The murdered man is one Jetha.  He married Sunder, P.W. 3, about  three years before he was killed, but we gather  that she  had not gone to live with her husband; anyway, she  was living  in the appellant’s village Shiva with her people  at the  time  of  the occurrence and  this  afforded  the  pair opportunities for a long continued course of illicit amours, chances  which  it seems they were not slow to  seize.   The husband  lived  in a village Kalawad which  is  three  miles distant.  At the time of the murder arrangements were  being made  for Sunder to go to her husband and  preparations  for the  ceremonial  appropriate to such occasions were  in  the course  of progress.  The prosecution case is that this  was resented  by the appellant who wanted the girl for  himself; so he went to the husband’s village Kalawad on the night  of the 18th/ 19th and murdered him with an axe which the prose- 1293 cution  say  belongs  to him and which  they  say  he  later produced.  Both Courts hold that the motive is proved; and that can be accepted.  Next comes the evidence about the sharpening of the axe  on the  evening  of  the 18th at Kana’s house  in  the  village Shiva.   The axe was produced in Court and Dewayat (P.W.  5) tells us that it was blunt.  Now there is nothing suspicious or  unusual in a villager sharpening a blunt axe and, as  we have  pointed out, Meraman (P.W. 11) says that  Dewayat  was also  sharpening  an  axe at the same time  and  place;  and Dewayat is one of the other three against whom suspicion was directed; also, the fact that the axe was sharpened in  this open  way in the presence of a number of persons,  including two  strangers to the village, (the two  Satwara  witnesses, P.Ws. 9 and 10), points to innocence rather than guilt.  But  the  prosecution  do not rely on  this  alone.   Their witnesses  say that when the appellant was asked why he  was sharpening his axe (Dewayat does not seem to have been put a similar  question  though he was doing the  same  thing)  he replied  that  he wanted to offer a green  coconut  to  Lord Shanker.   All  the witnesses are agreed that  this  has  no special  significance and that they attributed  no  sinister meaning  to  it at the time.  It has  acquired  significance only in the light of after events.   Even  here, there seems to us to be some danger that  what the appellant really said has got mixed up, with what  these witnesses  say and, no doubt, honestly believe he said.   We say this because Sunder, P.W. 3, and her mother Vali, P.W. 2 tell  us that the appellant came to the mother that  evening and offered her eight annas in lieu of a coconut.  It  seems that this is a customary offering given by relatives when  a daughter  leaves her parents’ home for  her  father-in-law’s place.  The appellant is distantly related to Sunder and  so such  an  offering would be normal, and as it was  made  the same  evening, apparently shortly after the other  incident, we think there is a strong probability that his remark about the offering of a 1294 coconut had reference to this and was later thought to  have reference  to  a  vow:  the sort  of  mistake  that  persons reconstructing  a crime might easily make and then  honestly believe;  and we are the more prone to think that  this  was



what probably happened because the conduct attributed to the appellant  is  so  unlike that of  a  murderer  deliberately planning  a cold blooded crime while, on the other band,  it is  wholly  consistent with innocence.  A  reasonable  doubt arises and the appellant is entitled to its benefit.   Next comes the evidence of Samant, P.W. 16, who says  that be saw the appellant that night on the outskirts of  Kalawad where  the  murder was committed.  He was  wearing  a  false beard  and a mask.  That of course is an important piece  of evidence  but the danger of mistaking the identity of a  man so  disguised at night cannot be disregarded, especially  as this  witness  qualified  his statement at the  end  of  his cross-examination by saying: "The person was just like him". It is evident to us that his statement about identity is not based  on his recognition of the appellant but on  the  fact that he saw a man who looked like the appellant and so, when he found that the appellant was under suspicion, he inferred that the man must have been the appellant.  But that is  the very  question that the Court has to decide.  The only  fact that this witness can be said to prove is that be saw a  man that  night wearing a false beard and mask who  looked  like the appellant.  Then  we come to the recoveries.  The false beard and  mask were found buried in the grounds of Dewayat’s house and  the appellant is said to have recovered them in the presence  of panchas.  But those discoveries are inadmissible in evidence because  the  police already knew where  they  were  hidden. Their  information  was not derived from the  appellant  but from  Dewayat  (one  of the other suspects).   The  way  the police  came to find this out was this.  Dewayat  says  that the appellant confessed the murder to him and told him  that he had gone there wearing a false beard and a mask and  that he had buried these articles 1295 under  the  Shami  tree in the grounds  of  Dewayat’s  bada. Dewayat says-   "Next the police called me to go to Kalawad.  At that time Raja  had been arrested............ I was  interrogated.   I spoke about the beard at that time.  Then the police came to my field with Raja". If Meraman (P.  W. 11), read with the Confused statement  of Kana  (P.W.  4), is to be believed, Dewayat was  also  under arrest either at the time or on the day before.  As the Sub- Inspector  was not examined, we are unable to clear this  up and  so  are bound to give weight to the  criticism  of  the Sessions Judge where he says-    "However,  Dewayat confesses that his statement  was  not recorded  on the 19th of May 1952 but was recorded on  20-5- 1952 only after he was questioned by the police".   In  our opinion, not only is this evidence about  recovery not admissible but the danger that Samant (P.W. 16)  mistook Dewayat,  who  was also under strong suspicion,  or  someone else  who looked like the appellant, for the appellant,  has not been excluded.   Lastly,  there is the recovery of the axe.  But  this  was not  hidden.   It  was kept behind an  earthen  jar  in  the appellant’s  house just as an axe might be normally kept  in any average household.  The only point of suspicion is  that the axe had stains of human blood on it.  But the difficulty we are faced with there is that the extent of the stains and their  position is not disclosed.  We have had  occasion  to comment  before on the very slovenly and ineffective way  in which  some  Chemical  Analysers do  their  duty.   This  is another  case  in  which what might otherwise  have  been  a valuable  piece of evidence has to be disregarded.  The  axe



was  not recovered till the 21st and was standing  where  it could  have been handled by other members of the  household. In  any  case,  villagers frequently  have  slight  cuts  or scratches or a prick from a thorn on their persons and a few drops  of  blood could easily be transferred to  an  article like  an  axe  without anybody  noticing  or  knowing.   The important thing in a case like this, where everything 1296 is now seen to hang on this one fact, would be the extent of the blood and its position.  The postmortem reveals that the injuries were incised and that the bleeding was profuse.  If therefore  there  was blood all along the cutting  edge  and around  it, that would have been a strong circumstance;  but if  there was only a small smear of blood, say, on the  back of  the  axe and none on or near the edge, then  that  would have  been  a circumstance for complete  exoneration.   When everything hangs on this one point, we cannot assume without proof  that  stains which might be  compatible  with  either guilt or innocence must have been of what we might term  the guilty kind. On  a careful examination of the evidence in this  case,  we are  not satisfied that the circumstances  disclose  "strong and compelling reasons" to set aside the acquittal. The appeal is allowed.  The conviction and sentence are  set aside and the appellant is acquitted. VENKATARAMA AYYAR J.-I regret I am unable to agree with  the judgment just delivered.  The  appellant  belonged  to the village  of  Katkora,  and developed intimacy with an unmarried woman called Sunder  in the neighboring village of Shiva.  Subsequently, Sunder  was married  to  one Jetha of Kalawad, a village about  3  miles distant from Shiva.  It had been arranged to take Sunder  to her  husband’s  house  on the 19th May 1952,  and  for  that purpose, Sida, the father of Jetha, had come to Shiva on the 18th.   The case of the prosecution was that  the  appellant was  determined to prevent Sunder from joining her  husband, and with that object he went to Kalawad on the night of  the 18th,  and  killed Jetha with his axe, when be  was  asleep. The  murder came to light next morning, and the  matter  was reported to the police.  The appellant was arrested on 20-5- 1952.   On  his information the police  recovered  from  his house at Katkora an axe, and the panchnama discloses that it then bad stains of blood which was subsequently found by the Chemical Analyst to be human.  The appellant next showed  to the police 1297 a false beard, which was buried under a tree in the  village of Shiva.  It is alleged that this was worn by the appellant at the time of the murder.   On  21-5-1952 the police sent the appellant to the  First- Class Magistrate (P.  W. 21), with a letter stating that  he wanted  to  make  a confession.   The  Magistrate,  however, decided  to  give him time "to cool down", and  put  him  in judicial  lock-up.  He then went on duty to  another  place, and on his return, recorded the confession of the appellant, which is as follows:   "  I,  having gone to his Wadi, have killed him.   I  have killed  him  with axe.  I have killed him for  the  sake  of Sunderbai.   Sunderbai is the wife of Jetha.  I had  illicit connection  with her.  I have murdered Jetha Sida  with  the idea  of marrying Sunderbai.  I gave him an axe-blow on  the neck.   At  that  time I had put on a tunic and  a  pair  of trousers.  I bad a turban on my head.  I had worn artificial beard.  After the murder, the artificial beard buried in the field of Dewanand Mope.  I took the axe to my house".



 The   appellant  retracted  this  confession  before   the Committing  Magistrate,  as made under police  beatings  and threats.  He was then sent up to the Sessions Court,  Halar, to  take  his trial, which took place with the aid  of  four assessors. There  was  no  direct  evidence  that  the  appellant   had committed the murder.  The circumstantial evidence on  which the prosecution sought to establish his guilt consisted of a confession  made by him to the Magistrate, the  recovery  of the  axe  and the false beard, and the existence  of  strong motive.  There was, besides, a considerable body of evidence that on the 18th May the appellant was haunting the  village of Shiva where Sunder was residing, with an axe in his  hand and  threats in his tongue.  The assessors were  unanimously of  the  opinion  that the appellant  was  guilty,  but  the Sessions  Judge  disagreed  with them,  and  held  that  the confession  was neither true nor voluntary, and that  though there  were strong grounds for suspecting him, the  evidence was not sufficient to convict him, and so acquitted him.   There was an appeal against this judgment by the 1298 State to the High Court of Saurashtra.  The learned  Judges, differing from the Sessions Judge, held that the  confession was  true and voluntary, that there was ample  corroboration thereof  in the evidence, and that even apart from  it,  the other  facts proved by ’the prosecution were  sufficient  to establish the guilt of the appellant.  They accordingly  set aside  the order of acquittal passed by the Sessions  Judge, convicted the appellant under section 302 and sentenced  him to  transportation  for life.  It is against  this  judgment that the present appeal by special leave has been brought.   The question is whether having regard to the principles on which  this Court exercises its jurisdiction  under  article 136,  there  are grounds for interference  in  this  appeal. Those  principles  are  well-settled  and  may  briefly   be recapitulated.   Prior to the abolition of the  jurisdiction of  the  Privy Council, the law of this country did  not  in general  provide for appeals against judgments of  the  High Courts  in  criminal  matters.  Indeed, the  policy  of  the legislature as expressed in sections 404 and 430 of the Code of  Criminal  Procedure and departing in this  respect  from that  adopted  in the Civil Procedure Code,  has  been  that decisions  of  courts passed in criminal appeals  should  be final  and  subject to specified exceptions, not open  to  a further  appeal on facts.  So far as judgments of  the  High Courts  are  concerned,  the limitation  on  further  appeal imposed  by  the  Indian  statutes  could  not  affect   the jurisdiction  of  the  Privy Council  to  entertain  appeals against  them  in  the exercise of the  prerogative  of  the Crown.   That was a power which the Privy Council  possessed in  respect  of  orders passed by the courts  all  over  the Dominions,   and  the  limits  within  which  the   Judicial Committee  exercised  that power were thus  stated  by  Lord Watson in In re Abraham Mallory Dillett(1):   "The  rule  has been repeatedly laid down,  and  has  been invariably  followed,  that Her Majesty will not  review  or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of  (1) [1887] 12 A.G. 459, 467. 1299 the  forms  of legal process, or by some  violation  of  the principles of natural justice, or otherwise,substantial  and grave injustice has been done". These principles were followed in quite a number of  appeals against judgments of Indian courts in criminal matters.   In



Dal Singh v. King-Emperor(1), the Privy Council, stating the practice of the Judicial Committee in dealing with an appeal in a criminal case., observed:   "The  general principle is established that the  Sovereign in Council does not act, in the exercise of the  prerogative right to review the course of justice in criminal cases,  in the  free fashion of a fully constituted Court  of  criminal appeal.   The exercise of the prerogative takes  place  only where   it  is  shown  that  injustice  of  a  serious   and substantial  character has occurred.  A mere mistake on  the part  of the Court below., as for example, in the  admission of improper evidence, will not suffice if it has not led  to injustice  of  a  grave  character.   Nor  do  the  Judicial Committee advise interference merely because they themselves would  have  taken a different view  of  evidence  admitted. Such questions are, as a general rule, treated as being  for the  final decision of the Courts below".  In Taba Singh  v. Emperor(2)    ,   Lord   Buckmaster   observed   that    the responsibility  for the administration of  criminal  justice rested  with the courts in India, and that the  Board  would not  interfere "unless there has been some violation of  the principles   of   justice  or  some   disregard   of   legal principles".  In George Gfeller v. The King(3), which was an appeal from the Supreme Court of Nigeria, Sir George  Rankin observed:   "Their  Lordships have repeated ad nauseam  the  statement that  they  do not sit as a Court of Criminal  Appeal.   For them  to  interfere with a criminal sentence there  must  be something so irregular or so outrageous as to shock the very basis  of  justice: per Lord Dunedin in  Mohindar  Singh  v. Emperor(4).  Cf.  Muhammad Nawaz v. Emperor(5) (1)  [1917] L.R. 44 I.A. 187, 140.   (2)     [1924]   I.L.R. 48 Bom. 515. (3)  A.I.R. 1943 P.C. 211.   (4)   [1932] L.R. 59 I.A.  233, 235. (5) [1941] L.R. 68 I.A. 126, 129. 164 1300 On these principles, the Privy council refused in Macrea, Ex parts(1)  leave to appeal on the ground of  misdirection  to the  jury and in Mohindar Singh v. Emperor’(2)on the  ground that a wrong view had been taken of the law.   Thus,  the  law was well-settled that  the  Privy  Council would  not entertain appeals against judgments  in  criminal cases, unless there was an error of . procedure or disregard of legal principles amounting to a denial of fair trial  and resulting  in grave injustice.  Under the Constitution,  the position of the Supreme Court which has taken t he place  of the Privy Council is this.  Its jurisdiction as that of  the Privy Council in respect of criminal appeals may be  classed under  two  categories,  cases where a right  of  appeal  is expressly granted by the Constitution or by the statutes, as for example, articles 132(1) and 134 (1) of the Constitution or  section 411-A(4) of the Code of Criminal  Procedure,  in which the scope of the appeal would depend upon the terms of the  enactments which confer the right; and cases’ where  it is  called  upon to exercise its powers under  article  136, which   corresponds   substantially   to   the   prerogative jurisdiction  exercised by the Privy Council with  reference to  which  the  practice of  the  Judicial  Committee  might usefully   be  referred  to  for  indicating  the  area   of interference.  The  question was considered by this Court in Pritam  Singh v. The State(3), where the law was thus laid down:   "On  a careful examination of article 136 along  with  the



preceding   article,   it   seems  clear   that   the   wide discretionary power with which this Court is invested  under it  is  to be exercised sparingly and in  exceptional  cases only .... The Privy Council have tried to lay down from time to  time  certain principles for granting special  leave  in criminal cases, which were reviewed by the Federal Court  in Kapildeo  v. The King(4).  It is sufficient for our  purpose to say that though we are not bound to follow them too (1)  [1893] L.R. 20 I.A. 90.   (2) [1932] L.R. 59 I.A.  233, 235. (3)  [1950] S.C.R. 458, 458.     (4) A.I R. 1950 F.C. 80. 1301 rigidly since the reasons constitutional and administrative, which  sometimes  weighed with the Privy Council,  need  not Weigh  with us, yet some of those -principles are useful  as furnishing  in  many cases a sound basis  for  invoking  the discretion   of  this  Court  in  granting  special   leave. Generally speaking, this Court will not grant special leave, unless   it   is   shown  that   exceptional   and   special circumstances  exist, that substantial and  grave  injustice has  been  done  and  that the  case  in  question  presents features  of sufficient gravity to warrant a review  of  the decision appealed against".   The  preceding article referred to in the opening  passage is  clearly article 134.  Article 134(1) confers a right  of appeal to this Court in certain cases, in terms unqualified, on questions both of fact and of law, and if the scope of an appeal  under  article  136 is to be  extended  likewise  to questions   of  fact,  then  article  134(1)  would   become superfluous.   It  is  obvious, that the  intention  of  the Constitution  in  providing  for an appeal  on  facts  under articles 134(1) (a) and (b) was to exclude it under  article 136,  and  it strongly supports the  conclusion  reached  in Pritam  Singh  v. The State(1) that like the  Privy  Council this, Court would not function as a further court of  appeal on facts in criminal cases.     Having  regard  to  the principles  enunciated  in  this decision.,  the  question is whether  there  are  sufficient grounds for interfering with the judgment of the High  Court in  the present appeal.  The point which the learned  Judges had to decide in the appeal was whether it was the appellant who  had  murdered Jetha.  That is a pure question  of  fact turning  on  appreciation of evidence. -The High  Court  has gone into the matter fully, examined the entire evidence ex- haustively,  and in a judgment which is as closely  reasoned as  it  is elaborate, has come to the  conclusion  that  the guilt  of  the  appellant has been  established  beyond  all reasonable   doubt.   Does  that  decision  call   for   our interference in special appeal?.No, unless this Court is  to ’function as a court of appeal on facts.  (1) [1950] S.C.R. 453, 458. 1302 But then, it is argued that the appeal before the High Court was  one against acquittal, that such an appeal was  subject to  the limitation that there should be  compelling  reasons for  reversing an order of acquittal, and that it  would  be open  to  this Court in special appeal to  consider  whether that limitation bad been duly observed.  On this contention, two  questions  arise for determination: (1)  what  are  the powers of a court which hears an appeal against an order  of acquittal?   And  (2)  what are the  grounds  on  which  the decision  of that court ban be reviewed by this Court  under article 136?    The  right  to appeal against an order  of  acquittal  is conferred  on  the  State  by section 417  of  the  Code  of



Criminal   Procedure,   and   is   in   terms   unqualified. Nevertheless, the view was taken at one time in some of  the decisions  that  appeals against acquittals were in  a  less favoured position than appeals against convictions, and that an  order  of  acquittal should not be  interfered  with  in appeal except "where through the incompetence, stupidity  or perversity   of  certain  tribunal  such   unreasonable   or distorted  conclusions have been drawn from the evidence  so as  to produce a positive miscarriage of justice",  or  were "the lower court has so obstinately blundered or gone  wrong as  to  produce a result mischievous at once  to  the  admi- nistration  of  justice and the interests  of  the  public". Vide  Empress v. Gayadin(1), Queen-Empress  v.  Robinson(2), Deputy Legal Remembrancer v. Amulya Dwan(3) and King-Emperor v.  U  San Win(4).  In Sheo Swarup  v.-King-Emperor(5),  the question  was raised for determination by the Privy  Council whether  there was any legal basis for the limitation  which the above decisions had placed on the right of the State  to appeal  under  section 417.  Answering it in t  e  negative, Lord  Russell observed that there was "no indication in  the Code  of any limitation or restriction on the High Court  in the  exercise of its powers as an appellate tribunal",  that no distinction was drawn (1) [1881] I.L.R. 4 All. 148.     (2) [1894] I.L.R. 16  All. 212. (3) [1914] 18 C.W.N. 666.  (4) [1982] I.L.R. 10 Rang. 312, (5)[1934] L.R. 61 I.A. 398, 403, 404.                             1303 "between  an  appeal  from an order of  ’acquittal  and  an- appeal from a conviction", and that "no limitation should be placed  upon that power unless it be found expressly  stated in the Code".. He went on to remark at page 404 that,   "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  witness,  (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 bad the advantage of seeing the witnesses".    These  observations, however, do not mean that the  scope of  appeals  against acquittals is different  from  that  of other appeals.  They merely embody the principles applicable to all appeals, civil and criminal, to appeals alike against conviction  and  acquittal.  Thus, if A files a  suit  on  a promissory  note against B and the latter denies  execution, the burden is on the plaintiff to establish its genuineness. If  the trial Judge does not accept the evidence adduced  by him and dismisses his suit and he appeals, he has the burden still  on  him  to prove on the evidence  adduced  that  the -promissory note is genuine, and in discharging that  burden he has to show that the judgment appealed against is clearly wrong.  In Naba Kishore Mandal v. Upendra Kishore Mandal(1), Lord Buckmaster stated:   "The only further observation that their Lordships  desire to  make is to call attention once more to the fact that  in appeals  the  burden of showing that the  judgment  appealed from  is wrong lies upon the appellant.  If all he can  show is  nicely  balanced calculations which lead  to  the  equal possibility  of the judgment on either the one side  or  the other being right, he has not succeeded".   Adapting  these observations to criminal trial,  when  the State appeals against an order of acquittal, it (1)  [1921] 42 M.L.J. 253, 257 (P.C.).



1304 has to establish on the evidence that the accused is guilty, and  to establish it, it has to satisfy the court  that  the judgment of the trial court is erroneous.  The  oft-repeated observation  that on acquittal the presumption of  innocence becomes reinforced is merely this principle stated in  terms of criminal law.  Likewise, the weight to be attached by  an appellate  court to a finding of the trial court based  upon appreciation  of  oral evidence is the same  whether  it  is given  in a civil litigation or a criminal  trial.   Dealing with  the  position of an appellate court  hearing  a  civil appeal,   the  Privy  Council  observed  in  Bombay   Cotton Manufacturing Co. v. Motilal Shivlal(1):    "It  is  doubtless true that on appeal  the  whole  case, including  the  facts,  is within the  jurisdiction  of  the Appeal Court.  But generally speaking, it is undesirable  to interfere  with the findings of fact of the Trial Judge  who sees  and  hears  the witnesses and has  an  opportunity  of noting their demeanour, especially in cases where the  issue is simple and depends on the credit which attached to one or other  of  conflicting  witnesses........  In  making  these observations their Lordships have no desire to restrict  the discretion   of  the  Appellate  Courts  in  India  in   the consideration of evidence".     It is clearly these principles that Lord Russell had  in mind  when  he  made the observations at page  404  in  Sheo Swarup  v.  King-Emperor2’) quoted above, and that  will  be clear from the observation next following:    "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 recognized in the administration of justice".    The  scope  of  the  decision  in  Sheo  Swarup  v.  King Emperor(2)  with  special  reference  to  the   observations discussed above was thus explained by the Privy .Council  in Nur Mohammad v. Emperor(3):    "Their  Lordships  were referred, rightly enough  to  the decision of this Board in the case in Sheo (1)  [1915] L.R. 42 I.A. 110; 118.  (2) [1934] L.R. 61  I.A. 398. (3) A.I.R.1945 P.C. 151. 1305 Swarup v. King-Emperor(1), and in particular to the  passage at p. 404 in the judgment delivered by Lord Russell.   Their Lordships  do not think it necessary to read it  all  again, but  would  like to observe that there really  is  only  one principle,  in the strict use of the word, laid down  there; that  is  that the High Court has full power  to  review  at large all 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".  These authorities establish beyond all controversy that  an appeal  against  acquittal  under  section  417  stands,  as regards  the  powers  of an appellate  court,  on  the  same footing as appeals against conviction.   If that is the true scope of an appeal under section  417, where  then does the doctrine of "compelling  reasons"  come in?  And how do we fit it among the powers of a court  under that  section?   The  words compelling reasons"  are  not  a legislative expression.  They are not found in section  417. As far as I have been able to discover, it was first used in Surajpal  Singh and others v. The State(2), wherein  it  was observed:   "It  is well established that in an appeal  under  section 417 of the Criminal Procedure Code, the High Court has  full



power  to  review  the  evidence upon  which  the  order  of acquittal  was founded, but it is equally well-settled  that the  presumption  of innocence of the  accused.  is  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  can  be reversed only for very substantial and compelling reasons".   Do  the  words "compelling reasons" in the  above  passage import  a  limitation on the powers of a  court  hearing  an appeal  under section 417 not applicable to a court  hearing appeals  against conviction?  If they do, then it is  merely the  old  doctrine that appeals against acquittal are  in  a less  favoured  position,  dressed in a new  garb,  and  the reasons for rejecting it as unsound are as powerful as those which found favour with the Privy Council in Sheo Swarup  v. King-Em- (1) [1934] L.R. 61 I.A. 398.  (2) [1952] S.C.R. 193, 201. 1306 peror(1) and Nur Mohammad v. Emperor(2).  But it is probable that  these  words  were intended to express,  as  were  the similar  words  of  Lord Russell in  Sheo  Swarup  v.  King- Emperor(1),  that the court hearing an appeal under  section 417  should  observe the rules which  all  appellate  courts should, before coming to a conclusion different from that of the   trial  court.   If  so  understood,   the   expression "compelling reason s" would be open to no comment.   Neither would  it be of any special significance in its  application to appeals against acquittals any more than appeals  against conviction.   But  the expression has been quoted  in  later judgments,  especially  of the courts below, as if  it  laid down  that  in appeals against acquittal,  the  standard  of proof required of the appellant was far higher than what the law  casts on appellants in other appeals, and as the  words "compelling  reasons" are vague and indefinite to a  degree, the result has not seldom been that even when Judges hearing appeals under section 417 were convinced of the guilt of the accused,  they  refrained from setting aside  the  order  of acquittal   owing  to  the  dark  and  unknown   prohibition contained in the expression.  That is the impression which I have  formed  in the appeals which have come before  me.  in this  Court.  There is always a danger in taking  a  phrase, attractive  and  telling-in  its context,  out  of  it,  and erecting  it  into a judicial formula as if it laid  down  a principle universal in its application.  And this danger  is all the greater when the phrase is of undefined import,  and relates to appreciation of evidence.  It is in the interests of the public that crimes should be punished, and it is with this object that section 417 confers on the State a right to appeal against acquittal.  To fetter this right through such expressions  as "compelling reasons" would not merely be  to legislate   but  to  defeat  the  plain  intention  of   the legislature  that an accused in an appeal against  acquittal should. have only those rights which the State in an  appeal against  conviction or a respondent in a civil  appeal  has, and that he is to enjoy no special protection. (1) [1934] L.R. 61 I.A. 398.      (2) A.I.R. 1945 P.C. 151. 1307 The  fundamental  objection  to  regarding  the   expression "compelling  reasons"  as  a  rigid  formula  governing  the decision  of an appeal under section 417 is that it  puts  a judgment  of acquittal, however rendered, in a  position  of vantage  which  the  law did not accord to  it,  and  throws around  the  accused who gets an order of acquittal  in  the trial  court  a protection which the law did not  intend  to give  him.   In my judgment, this is a  situation  in  which



great mischief must result, and the interests of the  public must suffer’   If  the expression "compelling reasons" does not impose  a restriction on the powers of a court hearing an appeal under section  417,  and  if  its true scope is  to  guide  it  in arriving at a decision, the question whether this Court  can interfere  with  that  decision on the  ground  that  it  is erroneous  presents no difficulty.  The decision would  then be one on a question of fact depending upon the appreciation of  evidence,  and  this court  cannot,  on  the  principles enunciated  in Pritam Singh v. The State(1)  interfere  with it.   This position is, in fact, concluded by the  decisions in  Sheo  Swarup  v. King-Emperor(2)  and  Nur  Mohammad  v. Emperor(3).  In Sheo Swarup v. King-Emperor(2), the Sessions Judge bad characterised the prosecution witnesses as  liars, and  disbelieving their evidence had acquitted the  accused. On  appeal,  the  High  Court  reviewed  the  evidence,  and differing  from  the  trial court as to  the  weight  to  be attached  to  it,  convicted  the  accused.   Declining   to interfere  with  this judgment, the Privy  Council  observed that  even  though  there  was no  express  mention  in  the judgment  of the High Court that it had considered  all  the particulars  which  an appellate court  should  consider  in deciding  an appeal, there was "no reason to think that  the High  Court  had  failed to take  all  proper  matters  into consideration in arriving at their conclusions of fact".  In Nur  Mohammad v. Emperor(3), the judgment of the High  Court did  not  disclose  that  it  had  considered  the   matters mentioned by Lord Russell at page 404 (1) [1950] S.C.R. 453.       (2) [1934] L R. 61 I.A. 398, (3) A.I.R 1945 P.C. 151. 165 1308 in Sheo Swarup v. King-Emperor(1).  Nevertheless, the  Privy Council dismissed the appeal observing:   "In  the present case the High Court judgment  shows  that they  have been at pains to deal in detail with the  reasons given  by the Sessions Judge for disbelieving the  group  of witnesses,  the  Patwari and the other  three  alleged  eye- witnesses.  They have dealt in detail with them, showing  on the  face  of their judgment that there is no  necessity  to presume in this case that they have not done their duty...."   These decisions are authorities for the position that when in  an  appeal  under section 417 the  court  considers  the evidence  and  comes  to its  own  conclusion  the  findings recorded by it are not, even when they result in a  reversal of  the order of acquittal, open to interference in  special appeal.   Different considerations would have arisen if  the law  bad  provided a further appeal on facts  against  those orders  of reversal, in which case the appreciation  of  the evidence  by the appellate court would be a matter  open  to review  in  the superior court.  That,  as  already  stated, would  be the position in an appeal under articles  132  (1) and  134(1)  (a) and (b), but where, as in the  present,  no appeal on facts is provided, the decision of the High  Court is not open to review by this Court under article 136 on the ground that there were no compelling reasons for the learned Judges to reverse an order of acquittal.   This is sufficient to entail the dismissal of this appeal. But, having gone through the evidence, I am of opinion  that even  on  the  merits  the decision of  the  High  Court  is correct.   The  evidence  against the  appellant  is  wholly circumstantial, and consists mainly of (1) the existence  of a strong motive, (2) the conduct of the appellant on the day when the murder was committed, (3) the recovery of a  blood-



stained  axe  and  a  false beard at  the  instance  of  the appellant,  and  (4) a confession made by  him  ’before  the Magistrate,  P.W. 21, on 3-6-1952.  Taking the above  items- seriatim,  it  is  the  case of  the  prosecution  that  the appellant was living on terms of inti-  (1) [1934] L.R. 61 I.A. 398. 1309 macy with Sunder, and as she was to be taken on the 19th May 1952  to Kalawad to join her husband, he wanted to  do  away with  him.   The  appellant admitted  that  he  had  illicit connection  with  Sunder for some years,  and  the  Sessions Judge   also  found,  basing  himself  on  the   prosecution evidence, that the appellant  was very much agitated on  the night of the 18th.  A    number  of witnesses  deposed  that they saw him   on 18-5-1952 at Shiva sharpening his axe, and that when questioned, he stated that be was going to offer a green  coconut  to  Mahadevji, "can  expression  "  say  the learned Judges "which in common parlance means sacrifice  of a head".  The appellant denied that he went to Shiva on  the 18th,  but  his statement was, disbelieved by  the  Sessions Judge  who  was impressed by the quality and number  of  the prosecution witnesses, and both the courts have concurred in accepting their evidence on this point.    As  for the recovery of the axe, the  appellant  admitted it, but he stated in his examination under section 342  that there  was no blood on it when he showed it to  the  police. The  Sessions  Judge,  was  not  prepared  to  accept   this statement and observed:   "Accused  admits  that  this  is his  axe.   In  light  of chemical analysis, there is no doubt that there were  stains of  human  blood on the axe.  It is also  mentioned  in  the Pancbnama,  Ex. 21 itself that the Panch had suspected  that there were marks of human blood on this axe".   But  all  the same, he discounted the value of  this  evi- dence,  because  according  to  him,  in  view  of   certain circumstances "the presence of human blood on the axe is  by no  means  conclusive",  and  that  "at  best  it  raises  a suspicion  against  the accused".  Those  circumstances  are three:  Firstly,  the panch who witnessed  the  recovery  at Katkora  belonged  to Kalawad, and the criticism is  that  a local panch ought to have been got to witness the same.  The learned Judges of the High Court did not think much of  this criticism,  as  the recovery at Katkora had to  be  made  in pursuance  of  the  statement  given  by  the  appellant  at Kalawad, 1310 and  the police might have reasonably thought that the  same panch should be present at both the places.  As the Sessions Judge has accepted the evidence of the panch that there were blood  stains  at the time of the recovery of the  axe,  his criticism  on this point lacks substance.  Secondly,  though the  recovery  was  made on 21-5-1952, it was  sent  to  the medical officer for report only on 27-5-1952, and the  delay is  suspicious.  It is difficult to follow  this  criticism. When once the conclusion is reached that there was blood  on the axe when it was recovered, this criticism has no meaning unless  it is intended to suggest that the  police  required some  time  to wash the blood which was on the axe  at  the, time   of  its  recovery  and  to  substitute  human   blood therefore.   There is nothing in the evidence to  support  a suggestion  so  grotesque, and as observed  by  the  learned Judges, if the police wanted to substitute blood, they would not have taken so much time over it.  Thirdly, in despatching the blood to the Chemical  Analyst, the  medical  officer sent the parcel containing  the  blood



scrapings  to the railway station, not through his own  peon or  the  compounder in the hospital but  through  the  local police,  and  that, according to the Sessions  Judge,  is  a suspicious circumstance.  As the parcel was received  intact by  the Chemical Analyst at Bombay, it is difficult  to  see what  the  point of the criticism is.   The  Sessions  Judge himself observes: "I  do  not believe that the police  have  intercepted  this parcel  and they deliberately sent an axe with human  blood. However, there is no doubt that the procedure adopted by the doctor is wrong, and is capable of mischief".   It has not been explained and it is not possible to divine what  that mischief could have been in this case.   And  who could have been the mischief-maker unless it be the  police? The  Sessions  Judge  stated that be  did  not  believe  the suggestion made against the police, but that nevertheless is the  assumption underlying his comment.  "Anxious to  wound, afraid   to   strike"  would  appropriately   describe   the situation.  The learned Judges disagreed with the  reasoning of 1311 the  Sessions  Judge,  and held that as  the  appellant  had admitted  the  recovery of the axe and as  there  was  human blood  on it at that time, it was clear and cogent  evidence pointing  to his guilt.  I am unable to find any  answer  to this reasoning.    Pausing  here,  it will be seen that in   discussing  the question of the recovery of the blood-stained axe, as indeed throughout  the  judgment, the learned  Sessions  Judge  has taken  up  an, attitude of distrust towards the  police  for which  it  is  difficult to find any  justification  in  the evidence-an  attitude which, I regret to say, is becoming  a growing  feature  of judgments of  subordinate  Magistrates. When  at  the trial, it appears to the court that  a  police officer  has,  in  the discharge of  his  duty,  abused  his position  and acted oppressively, it is no doubt  its  clear duty  to express its stern disapproval of his conduct.   But it  is  equally its duty not to assume such conduct  on  the part of the officer gratuitously and as a matter of  course, when  there is, as in this case, no reasonable basis for  it in  the evidence or in the circumstances.   The  presumption that  a person acts honestly applies as much in favour of  a police officer as of other persons, and it is not a judicial approach  to distrust and suspect him without  good  grounds therefore.  Such an attitude could do neither credit to  the magistracy nor good to the public.  It can only run down the prestige of the police administration.    It  is  the case of the prosecution  that  the  appellant unearthed  a false beard, which he had buried  underneath  a shami tree in Shiva, and that he had worn it at the time  of the  murder.  The appellant did not deny the  recovery,  but stated  that  it was not he that had uncovered  it  but  the jamadar.  Both the courts below have accepted the version of the  prosecution as true, but while the Sessions Judge  held that  it was not sufficient to implicate the appellant,  the learned Judges held otherwise.  P.W. 16 deposed that he  saw the  appellant at midnight on the 18th May on the  outskirts of  Kalawad  wearing a false beard, and the comment  of  the Sessions Judge on this evidence is: " I do not see bow this evidence will prove the 1312 prosecution case beyond reasonable doubt.  At best, it  will suffice to raise suspicion against the accused".  But if the beard  was discovered by the appellant, then surely it is  a valuable link in the chain of



evidence against him. Then we come to the confession made by the appellant to P.W. 21.   The  Magistrate  has deposed  that  he  had  satisfied himself  that it was voluntary, before he recorded it.   The Sessions  Judge did not discredit his testimony, but was  of opinion that in view of certain circumstances the confession was  not voluntary.  Now, the facts relating to this  matter are these, The appellant was, as already stated, arrested on the 20th May and discoveries of the axe and the false  beard were  made through him, and on the 21st he was sent  to  the Magistrate  with  a  letter  that  he  desired  to  make   a confession.   The Magistrate has given evidence that he  did not  record  the  confession  at  once,  as  he  wanted  the appellant "to cool down", and accordingly gave him ten  days to reflect, and committed him to judicial lock-up.  There is nothing  improper in this, and indeed ’ it is a  commendable precaution  for  ensuring  that  the  confession  was   made voluntary.    From  21-5-1952  to  3-6-1952  the   appellant continued  in judicial lock-up, and this is  a  circumstance which  normally  should negative the  possibility  of  there having been a threat or inducement.  But the Sessions  Judge declined to attach any weight to it, because both the police lock-up  and the judicial lock-up were situated in the  same compound,  separated  by  a distance of 20  feet,  and  were guarded by the same police officers, and though the judicial lockup had its own warder and clerk jailor, they kept  watch only  during daytime, and therefore even though  the  police could have had no access inside the lock-up, they had "every opportunity  to  threaten  and  bully  the  accused".    The Sessions Judge accordingly held that the confession was  not voluntary.   On  appeal,  the  learned  Judges  came  to   a different conclusion.  They considered that the  possibility of  threats  having been uttered through the  bars  was  too remote and unsubstantial to form the ’basis for any 1313 conclusion,  and that all the circumstances  indicated  that the confession was voluntary.  These are the salient  points that emerge out of the evidence. The position may be thus summed up: (1)  No  special  weight  attaches to the  findings  of  the Sessions  Judge  on the -around that they are based  on  the evidence of witnesses whom he had the advantage of seeing in the  box,  and believed.  The oral evidence was all  on  the side of the prosecution, and that was substantially accepted by  the  Sessions  Judge.   His judgment  is  based  on  the probabilities  of the case, and of them, the learned  Judges were at least as competent to judge, as he. (2)  The  finding  of  the Sessions Judge in so  far  as  it related  to  the recovery of bloodstained  axe  was  clearly erroneous, as it did not follow on his reasoning. (3)  As  regards  the  confession,  the  conclusion  of  the Sessions  Judge  rests on nothing tangible, and  is  largely coloured  by a general distrust of the police, not based  on evidence or justified by the circumstances. (4)  The  learned  Judges  were of  the  opinion  that  even excluding the confession, the other evidence in the case was sufficient to establish the guilt of the appellant. (5)  All  the  four assessors were of the opinion  that  the appellant was guilty.   Now, returning to the two questions which have formed  the basis  of the preceding discussion, (1) what is it that  the High Court has to do in exercise of its powers under section 417, having regard to the findings reached by it and set out above,  and  how does the doctrine of  "compelling  reasons" bear  upon  it?  (2) What are the grounds on  which  we  can



interfere  with  its decision?  A court  hearing  an  appeal under   section   417  might  be   confronted   with   three possibilities:  (i) It might come to the same conclusion  as the trial court on the questions in issue, in which case, of course, it should dismiss the appeal; (ii) It might consider that  the evidence was not clear and conclusive one  way  or the other, in which case its duty 1314 as  an  appellate court would be not to interfere  with  the judgment  appealed  against; and (iii) it might  come  to  a conclusion  on an appreciation of the evidence  opposite  to that  reached by the court of first instance, in which  case it would clearly be its duty in exercise of its powers under section  417 to set aside the order of  acquittal.   Wherein does the theory of "compelling reasons" come in the  scheme? There is no need for it in the second category, because even apart  from  it, the same result must,  as  already  stated, follow on the principles applicable to all courts of appeal. Then,  there  remains the third category of cases.   If  the High Court comes to the conclusion on an appreciation of the evidence that the appellant is guilty, has it, nevertheless, to  confirm  the  order of acquittal on the  basis  of  this theory?   Surely  not,  as  that  would  render  the   right conferred  by section 417 illusory.  Thus, the  doctrine  of "compelling  reasons"  would appear to have use  only  as  a guide  to  the appellate court in determining  questions  of fact.  It has no independent value as bearing on its  powers under section 417.  If that is the true position, it follows on  the  principles  laid  down  in  Sheo  Swarup  v.  King- Emperor(1)  and  Nur Mohammad v. Emperor(2)  and  in  Pritam Singh v. The State(3) that this Court cannot interfere  with the  orders  passed under section 417 merely on  the  ground that the findings of fact were not justified, having  regard to the doctrine of "compelling reasons". In my opinion, this appeal ought to be dismissed.                            ORDER.  BY  THE  COURT.-In  accordance with  the  Judgment  of  the majority  this  Appeal  is  allowed.   The  conviction   and sentence are set aside and the Appellant is acquitted. (1) [1934] L.R. 61 I.A.398.   (2) A.I.R. 1945 P.C. 151. (3) [1950] S.C.R. 453. 1315