IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.155 OF 2006

Ghurey Lal     … Appellant

Versus

State of U.P.     … Respondent

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment of the High

Court  of  Allahabad  dated  11th November,  2005  passed  in

Criminal Appeal No. 365 of 1981.   

2. This is a murder case in which the trial court acquitted

the  accused.   The  High  Court  reversed  the  trial  court’s

decision, finding the accused guilty.  In doing so, the appellate

court failed to give proper weight to the views of the trial court

as to credibility of witnesses, thereby ignoring the standards

by  which  the  appellate  courts  consider  appeals  against

acquittals.   

3. We have endeavoured to set  out the guidelines for the

appellate courts in dealing with appeals against acquittal.  An

overriding theme emanates from the law on appeals against

acquittals. The appellate court is given wide powers to review

the evidence to come to its own conclusions.  But this power

must be exercised with great care and caution.  In order to

ensure  that  the  innocents  are  not  punished,  the  appellate

court should attach due weight to the lower court’s acquittal

because the presumption of innocence is further strengthened

by  the  acquittal.   The  appellate  court  should,  therefore,

reverse  an acquittal  only when it  has “very substantial  and

compelling reasons.”   

4. In giving our reasons for reversing the appellate court’s

judgment and restoring that of the trial court, we provide a

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brief review of the facts, the reasoning of the trial and High

Court  as  well  as  the  standards  by  which  appeals  against

acquittals  are  reviewed  according  to  settled  principles  of

criminal jurisprudence in our country.   

5. Before  turning  to  the  facts  that  were  before  the  trial

court, we note that there is an interesting coincidence in this

case.  The names of both the accused and the deceased are

Ghurey Lal.  Therefore, to avoid confusion, we have referred to

them as “accused” and “deceased.”   

6. Brief  facts,  according  to  prosecution,  which  are

necessary  to  dispose  of  this  appeal  are  recapitulated  as

under:-

It appears that at the heart of this matter lies a property

dispute.   The  accused  testified  in  favour of  his  great-grand

daughter,  Ram  Devi.   This  testimony  went  against  the

deceased, creating enmity between the parties.   

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7. On 14.3.1979, the deceased, Shiv Charan P.W.1, Brij Raj

Singh P.W.2, Yad Ram P.W.4, Nathi Lal (not examined) and

Bishambhar  (not  examined)  had  taken  the  customary  Gur

(Jaggery) during the Holi festival.

8. On their way home, they happened to pass by the home

of the accused.   The accused was standing just outside his

home and was holding  a shot  gun.   The  accused  began to

verbally abuse the deceased. Thereafter, the accused fired one

single shot from his gun, killing the deceased with a bullet

and  causing  injuries  to  Brij  Raj  Singh P.W.  2  with  pellets.

Hearing the gun shot, some people quickly assembled at the

scene.  The accused fled to his room, which he locked from

inside.  The uncle of the deceased, Shiv Charan, lodged the

FIR that very evening, the 14th March, 1979 at 6.15 p.m., at

the Barhan Police Station in the District of Agra.   

9. The  accused  provided  his  own  version  of  the  event.

According to the statement of the accused under section 313

of  the Code  of Criminal  Procedure,  he went to the place  of

Kanchan  Singh where  Gur  (Jaggery)  was  being  distributed.

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One  Bal  Mukand  told  the  accused  to  leave  the  Gur

distribution ceremony, as the deceased, Brij Raj Singh P.W. 2,

Yad  Ram  P.W.4,  Nathi  Lal  and  Bishambhar  had  collected

pharsa,  lathis  and kattas  declaring  that they will  deal  with

him (accused)  when he  comes  there.   On hearing  this,  the

accused  returned  to  his  home  and  grabbed  his  gun.   The

deceased  and others then arrived  at  his  home,  brandishing

weapons.   The  deceased  carried  a  pharsa,  Nathi  Lal  had a

katta, Brij Raj Singh a knife and Yad Ram and Bishambhar

possessed  lathis.  To threaten and check them, the accused

aimed his gun at them.  This was to no avail.  The deceased

and others struck at the accused, hitting his gun.  Nathi Lal

fired his katta, causing pellet injuries to Brij Raj Singh P.W.2.

A scuffle ensued in which the deceased’s group tried to snatch

away his gun.  In the scuffle, the gun was accidentally fired,

killing the deceased.  The accused sustained pharsa and lathi

blows on the butt and barrel of the gun.  Fearing for his life,

the accused went to his room and locked the door from inside.

10. Brij  Raj  Singh  P.W.  2  was  sent  to  the  Government

Hospital, Barhan for medical examination.  Dr. Govind Prasad

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P.W.3 found the following injuries on the person of Brij  Raj

Singh, P.W. 2:

1. Round  lacerated  wound  0.3  cm x  0.3  cm on right side  back 10 cms away from mid line 9 cms below border  of  scapula.   Margins  burnt and inverted, and tattooing present in an area of  5  cms.  No  pellets  palpable.    Bleeding present.

2. Lacerated  wound of  exit  1.5  cm x  0.5  cm on right side  back 0.8 cm away and lateral  from injury no. 1. Skin burnt and tattooing present in the area of 5 cm x 5 cms.  Merging of the wound inverted.  No pellets palpable.

11. The  Doctor  opined  that  the  injuries  were  caused  by a

firearm. He advised that x-rays be taken and that the injuries

be  kept  in  observation.   In  his  opinion,  the  injuries  were

caused by a gun shot and were  of fresh duration.    In  his

opinion, the injuries could have been caused around 4 p.m.

The  doctor  sent  the  memo  Ex.  Ka-4  on  the  same  day,

informing the case of Medico legal nature to the Barhan Police

Station.   

12. The autopsy on the deceased was conducted by Dr. Ram

Kumar  Gupta,  P.W.5,  Medical  Officer,  SNM  Hospital,

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Firozabad, District Agra.  It revealed the following ante-mortem

injuries on the deceased:

1. Gun shot wound of entry 2.5 cm x 2.5 cm x through and through on right side neck 2  cm  lateral  to  midline  of  neck  front aspect.

2. Gun shot wound of exit 5 cm x 4 cm x through and through on right side back of  neck  5  cm  below  right  ear corresponding  to  injury  no.  1  with margins averted.   

The Doctor opined that the cause of death was due to shock

and hemorrhage as a result of ante-mortem injury.  

13. The prosecution examined Shiv Charan P.W.1, Brij  Raj

Singh  P.W.2  and  Yad  Ram  P.W.4  as  eye  witnesses  of  the

occurrence.   Dr.  Govind  Prasad  P.W.3,  Medical  Officer  In-

charge, who had medically examined Brij  Raj Singh, proved

the injury report Ext. Ka 3.  Dr. Ram Kumar Gupta P.W. 5,

who had conducted autopsy on the dead body of the deceased,

was also examined.  On internal examination, he found semi

digested  food material  in the  small  intestine and there  was

faecal matter present in the large intestines.  He prepared the

post-mortem report Ex. Ka-5.  In his opinion, the death of the

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deceased  had  taken  place  around  4  p.m.  on  14.3.79  on

account of the said injuries and shock.

14. The accused was charged with killing the deceased under

section 302 of the Indian Penal Code (For short, IPC) and with

causing simple injuries to the injured under section 323 IPC.

He was also charged with attempting to murder Brij Raj under

section 307 IPC.  The accused appellant denied the charges,

pleaded not guilty and asked to be tried.   

15. The crucial question which arose for consideration was

whether  the  injuries  caused  to  Brij  Raj  Singh  P.W.2  could

have been caused by the same shot that killed the deceased.

If that was possible, the prosecution version became probable.

But  if  the  shot  that  killed  the  deceased  and the  shot  that

caused injuries to Brij Raj Singh were from different weapons,

then  the  defence  version  was  more  probable.   Shri  B.  Rai,

Ballistic Expert, Forensic Science Laboratory, U.P. was called

as court witness No.1.  He was asked to explain the nature of

the  12  bore  cartridges  and  give  an  opinion,  for  which  he

wanted time to carry out experiments in the laboratory.  The

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gun  was  given  to  him  and  he  performed  a  test  in  his

laboratory in the light of the statements of the eye-witnesses,

medical report and site-plan.  He submitted his report, Ex. C-

Ka.1, wherein he clearly opined that injuries Nos. 1 and 2 of

the deceased were possible by the gun Ex.3 of the accused

and injuries Nos.1 and 2 of the injured Brij Raj Singh were

possible by another fire.   By “fire”, it is clear from the record

that the Ballistic Expert was referring to a “firearm”.   

16. Ultimately,  we  must  answer  the  following  question:

Whether the prosecution story of a single shot causing injury

to  two persons,  that  is  bullet  injury to deceased  and pellet

injury to Brij  Raj Singh, with the accused as the aggressor,

stands sufficiently proved beyond reasonable doubt?

17. In order to decide whether a single shot was fired or in

fact two different shots were fired, we must carefully examine

the versions of the prosecution and the defence and the report

of  the  Ballistic  Expert.   According  to  the  trial  court,  the

medical  evidence  coupled  with  the  Ballistic  Expert  report

revealed the existence of two fires from two weapons and as

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such was  inconsistent  with the  prosecution story.  The  trial

court further provided that it is difficult to separate falsehood

from the truth, as some material  aspects  of the occurrence

appeared  to  have  been  deliberately  withheld.   “One  has  to

separate the chaff from the grain and it is difficult to lay hand

upon what part of the prosecution evidence is true and what

part is untrue”.  According to the accused, the trial court had

taken a reasonable and possible view of the entire evidence on

record.    

18. The  post-mortem report  Ex.  Ka-5,  photo  lash Ex.  Ka-7

and the statement of Dr. Ram Kumar Gupta P.W.5 indicate

that the wound of entry was on the right side of the neck 2

cm. lateral middle line on front aspect.  The exit wound was

on the right side back of neck 5 cm. below the right ear.  This

means that the bullet had entered from the front side of the

neck from a distance of 2 cm. lateral to middle line, and it had

come out from the back of the neck at a place 5 cm. below the

right ear.  In this way, the trial court reasoned that the barrel

of  the  gun,  when  discharging,  was  slanting  vertical.  The

mouth of the barrel was upward and its butt downward.  The

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barrel and the butt were not horizontal to the ground at that

time.

19. The  trial  court  observed  that  injury  no.  1  (wound  of

entry) on Brij  Raj Singh P.W.2 was on the right side of his

back 10 cm. away from the mid line, 9 cms. below the lower

border of scapula.   Injury no. 2 (wound of exit) was on the

right side of his back 8 cm. away and lateral from injury no.1.

This means that the exit wound was by the side of the entry

wound at a distance of 8 cm.  

20. The dictionary meaning of ‘lateral’  is “by the side” and

this means that the two injuries caused by pellets to Brij Raj

Singh P.W.2 were horizontal and not vertical.  The trial court

opined  that  the  single  shot  could  not  have  caused  vertical

injury to one person and horizontal injury to another.  It found

it  doubtful  and  not  sufficiently  proved  that  the  same  shot

could have injured Brij Raj Singh and killed the deceased.

21. This conclusion is further fortified by the report of the

Ballistic Expert Sri B. Rai court witness No.1.  He has given a

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definite  opinion  after  making  actual  experiments  by  firing

shots.   This  was  done  from  the  distance  at  which  the

occurrence was said to have taken place.  The eye-witnesses

had testified to this distance.  The Ballistic Expert opined that

the injuries to Brij Raj Singh P.W.2 were from a different shot

from the one that killed the deceased.   

22. The relevant part of the evidence of the Ballistic Expert

reads as under:

“2. Question-  Whether  bullet  and Chharras both be used in 12 bore gun or not?

Ans.- 12 bore gun have no bullet.  It has small chharas, big  chharas or one single  ball  shot with diameter about 0645.”

23. The Ballistic Expert after studying the post-mortem report

observed as under:

“Studying  the  Post  Mortem  report  No.  51/79  of deceased  Ghurey  Lal  and  injury  report  of  Brijraj Singh  dated  14.3.79,  statement  of  doctor  and witnesses and site plan and keeping the result  of above experiments in mind, I reached in conclusion that  injury  No.  1  and  2  possible  to  sustain  to deceased Ghurey Lal by this gun from the distance of 10 feet and injury No. 1 and 2 of injured Brij Raj Singh seems to sustain by some other shot.”

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24. The Ballistic Expert categorically stated that in cartridges

of standard 12 bore shot guns, bullets from other rifles cannot

be used with small and big chharas (pellets).  Therefore, the

trial court concluded that both the injuries were not possible

by a single firearm.

25. Leading experts of forensic science, particularly ballistic

experts,  do  not  indicate  that  from  a  single  cartridge  both

bullets and pellets can be fired.  Professor Apurba Nandy in

his  book  “Principles of  Forensic  Medicine”,  first  published in

1995 and reprinted in 2001, discussed cartridges.  Professor

Nandy  mentioned  that  in  some  cases,  instead  of  multiple

pellets, a single shot or metallic ball, usually made of lead, is

used.   We  note  that  the  discussion  regarding  cartridges

exclusively mentions pellets. No mention of bullets and pellets

in cartridges is found in the numerous volumes of scholarly

literature that we have consulted.   Relevant discussion reads

as under: p. 241

“The Cartridges (the ammunitions)-

The cartridge of a shotgun and the cartridge of a rifled weapon are essentially different in their makes.

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The cartridge of a shot gun – (Fig. 10.69)

The cartridge of a shotgun has the following parts and contents-

1. The cartridge case – The longer anterior part of the cartridge case is made of card board. The  posterior  part  and  the  posterior  surface  is made of brass.  The margin of the breach end of the cartridge case is rimmed, so that, the cartridge can  be  properly  placed  inside  the  chamber  and with pressure on the rim the empty cartridge case can  be  easily  ejected  out  of  the  chamber.  The anterior  margin  of  the  cartridge  case  is  twisted inward  to  keep  the  pellets  and  other  materials inside the case compact. The anterior part of the cartridge  case  is  made  of  cardboard,  for  which, with production of gas inside the cartridge case it can slightly expand so that, the twisted grip by the anterior  margin  will  be  released  and  the  pellets can come out of the case.  The posterior metallic part  keeps  the  shape  of  the  breach  end  of  the cartridge  intact.   It  helps  to  maintain  the  right position of the cartridge in the chamber, so that, the  percussion  pin  of  the  hammer  strikes  the percussion cap rightly at the breach surface of the cartridge.  At  the  central  part  at  the  breach end inside the cartridge case is the percussion cap.

2. The percussion cap – It contains primer or priming mixture and there are some vents or openings on the wall of the percussion cap.  When the  posterior  surface  of  the  percussion  cap  is struck by the percussion pin, the priming mixture which  consists  of  a  mixture  either  of  mercury fulminate,  pot,  pot,  chlorate  and  antimony sulphide  or  of  antimony  sulphide  with  lead styphnate,  lead  peroxide,  barium  nitrate  or tetracene,  gets  ignited  due  to  the  pressure  and friction and fire  comes out through the vents or openings on the wall of the percussion cap.

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3. Contents  inside  the  cartridge  case. Surrounding the percussion cap is the gun powder or  the  propellant  charge  which cannot  ignite  by pressure  or  friction  and  which  on  being  ignited does  not  produce  flame  but  produces  huge amount  of  gas.   Usually  the  gunpowder  of  the shotguns  contains  charcoal,  pot,  nitrate  and sulphur.   This  combination of  the  gunpowder  is known  as  black  powder,  as  it  produce  much smoke.  Now-a-days semi smokeless gun powder is in use in shot guns which is a combination of 80%  of  black  powder  and  20%  of  smokeless powder.  Smokeless powder is ordinarily used in the  cartridges  of  rifles  (nitrocellulose  or  a combination of  nitrocellulose  and nitroglycerine). The black powder produces 200 – 300 ml. of gas per grain.  In front of the gunpowder, inside the cartridge case, there is a thin cardboard disc.  In front of the cardboard, disc is placed the wad. The wad  is  made  of  soft  substance  like,  felt,  cork, straw or rug.  In front of the wad, there is another card board disc.  In front of this disc, the pellets are placed.   The  pellets  are  spherical  projectiles used  in shot  guns.   Their  size  may be  variable, according to the need and make.   One ounce of pellets may consist of 6 to 2,600 of them.  In front of the pellets there is another cardboard disc on the anterior margin of which the anterior margin of the cartridge case is twisted.  The functions of the  wad  are  to  give  compactness  to  the gunpowder,  to  prevent  admixture  of  propellant charge and the pellets and prevent leakage of the gas produced after the firing.  Wad also cleans the inner surface of the barrel  after the pellets pass out through the barrel.  To facilitate this cleaning, some  greasy  material  is  soaked  in  the  wad.   In between the propellant charge and the wad there is a cardboard disc so that the greasy substance in the  wad  will  not  be  soaked  by  the  propellant charge and become useless.  In between the wad and the pellets there is a disc which in one hand prevents  impregnation  of  the  pellets  in  the  soft

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wad  and  on  the  other,  prevents  leakage  of  the greasy  substance  from  the  wad  in  the  pellets which would otherwise  become adhesive  to each other   loosing  their  dispersion  capacity.   The anterior – most disc, placed in front of the pellets, give  compactness  to  the  pellets  and  the  whole content of the cartridge case.

Shots  of  different  sizes  are  suitable  for different  purposes.   Accordingly  “Buck shots”  or “Bird shots”  have  different  sized  shots or pellets for hunting wild birds or other prey.

In  some cases  instead of  multiple  pellets  a single  hot  or  metallic  ball,  usually  made  up  of lead,  is  used.   “Rifled  slugs”  are  single  shot projectiles  for  shot  guns with prominent  parallel grooves on the surface.”

26. In  this  book,  the  assessment  of  the  direction  of  firing

from the margin of the wound of entrance has also been given,

which reads thus: p. 257

“Assessment  of  the  direction  of  firing  from  the margin of the wound of entrance –

(i) (a) In case of shotgun injury, the pattern of  dispersion of  the pellets give the direction of the firing.  The pellets disperse over wider area as it travels  more.   Hence  firing  is suspected  to  have  been  from  the side  opposite  to  the  side  of  wider dispersion of the pellets. ……”

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27. “Firearms  in  Criminal  Investigation  and  Trials”  was

written by a distinguished professor Dr. B.R. Sharma.  He has

written in some detail  about 12 bore guns.  This book also

defines Pellet Pattern which reads thus: p.204

“Pellet Pattern The area covered (pellet spread) by the pellets

fired  from  a  shotgun  is  proportional  to  the distance  between  the  muzzle  of  the  firearm and the target.  Greater the range, greater is the area covered by the pellets. The spread of the pellets is affected mainly by the length of the barrel of the firearm and its muzzle characteristics (whether it is  choked  or  not).   The  condition  of  the ammunition  also  affects  the  results.   If experiments are performed with the same firearm and ammunition of the same make and batch, the test  patterns provide  fairly accurate  estimates of the range.

Generally, the whole charge enters the body en masse  up to a range of about two metres in a factory-made 12-bore shotgun.  It forms a rat-hole of about two to six centimetres in diameter.  The rat-hole  is  surrounded by individual  holes  when the range of fire is about two to seven metres…”  

28. The trial court stated that in the FIR itself it is mentioned

that the injuries to Brij Raj Singh were by pellets and that of

the deceased by a bullet.  The Ballistic Expert has stated that

the  cartridge  containing  pellets  cannot  contain  a  bullet.

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Accordingly, the trial court reasoned that two weapons were

used.   

29. The  Ballistic  Expert  is  a  disinterested,  independent

witness  who  has  technical  knowledge  and  experience.   It

follows  that  the  trial  judge  was  fully  justified  in  placing

reliance on his report.    

30. The trial court also observed that removing the body of

the deceased from the place of occurrence creates doubt that

the prosecution was planning to substitute another story for

the real facts.  As such, the possibility that the deceased and

his group were the aggressors is not ruled out. It is possible

that pharsa and lathi blows had made the marks that were

found  on  the  gun.   The  gun  may  have  snatched  all  of  a

sudden,  causing  it  to  fire  upon the  deceased  and Brij  Raj.

Under  the  circumstances  of  the  case,  the  use  of  another

weapon, which had caused injuries to Brij Raj Singh P.W.2, is

also not ruled out.

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31. The trial court further observed that the substratum of

the prosecution story about the injuries to Brij Raj Singh is

not  established  beyond  reasonable  doubt  and  the  story  of

shooting the deceased by the same shot fired by the accused

is  not  separable  from  other  doubtful  evidence  of  eye-

witnesses.   The  circumstances  show that  the  possibility  of

aggression on the part of the complainant side is not ruled

out, then the benefit of doubt for killing the deceased by the

accused would also go to the accused.

32. The trial  court  also  found force  in the  plea  of  right of

private  defence  as  set  up  by  the  accused.   The  trial  court

mentioned  that  there  is  force  in  this  argument  where  the

circumstances of the case show that two fire arms were used

in the occurrence.  The accused was all alone in his house at

that time.  The availability of a second weapon is possible only

when the complainant side had brought it to the scene.  This

circumstance  supports  the  defence  case,  that  the

complainants’  side  was  the  aggressor  and  they  had  come

armed with weapons to the scene. It follows that the accused

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would  apprehend  grievous  hurt  and  danger  to  his  life.

Accordingly, the right of self defence was open to him.

33. In the concluding paragraph of the judgment, the trial

court  observed  that  when  neither  the  prosecution  nor  the

defence version is complete, then it is obvious that both the

parties are withholding some information from the court. The

burden  of  proving  the  charge  to  the  hilt  lies  upon  the

prosecution.  It has failed to discharge its burden.  Thus, the

benefit has to go to the accused.  According to the trial court,

the  accused  could  not  be  convicted  for  the  charges  framed

against him.  He was entitled to get the benefit of doubt and,

consequently, the accused had to be acquitted of the charges

under sections 302, 307 and 323 IPC.

34. The  State,  aggrieved  by  the  trial  court’s  judgment,

preferred an appeal before the High Court.  

35. The  High  Court  in  appeal  re-appreciated  the  entire

evidence  and  came  to  the  conclusion  that  the  trial  court’s

judgment  was perverse  and unsustainable.   It  therefore  set

20

aside  the  trial  court  judgment  and  convicted  the  accused

under  section 302 IPC for  the  murder  of  the  deceased  and

under  section  324  IPC  for  injuring  Brij  Raj  Singh  and

sentenced him to life  imprisonment and for six months R.I.

respectively.

36. Against the impugned judgment of the High Court, the

accused appellant has preferred appeal to this court.  We have

been called upon to decide whether the trial court judgment

was perverse and the High Court was justified in setting aside

the same or whether the impugned judgment is unsustainable

and against the settled legal position?

37. We deem it appropriate to deal with the main reasons by

which  the  trial  court  was  compelled  to  pass  the  order  of

acquittal and the main reasons of the High Court in reversing

the judgment of the trial court.

MAIN REASONS FOR ACQUITTAL BY THE TRIAL COURT:

21

38. The  trial  court  acquitted  the  accused  for  the  following

reasons:

1. The prosecution story of single shot injury to

two persons one standing horizontally and the

other  vertically  stands  totally  discredited  by

the  medical  and  the  evidence  of  Ballistic

Expert.

2. According to the FIR, the deceased received a

spherical ball (ball shot) bullet injury and Brij

Raj  Singh P.W.2 received  pellet  injuries.  The

accused’s gun had a cartridge that could only

contain  pellets.    The  Ballistic  Expert  has

clearly  stated  that  a  cartridge  containing

pellets  cannot  contain  a  bullet.   As  such,  it

appears that two weapons were used.  

3. Dr. Ram Kumar Gupta, P.W.5 who conducted

the post-mortem of the deceased, clearly stated

that  the  deceased  received  injuries  from  a

bullet whereas Dr. Govind Prasad Bakara who

had  examined  Brijraj  Singh  P.W.2  clearly

22

stated  that  both  injuries  were  caused  by  a

pellet.   

Therefore,  according  to  medical  evidence

coupled  with  the  evidence  of  the  Ballistic

Expert,  two  firearms  must  have  been  used.

This  version  is  quite  inconsistent  with  the

prosecution story.

4. The injuries received by Brij Raj Singh P.W.2

were  from  the  back  side  and  the  injury

received by the  deceased  was from the front

side  and  this  shows  that  two  weapons  may

have been used.

5. Removal of the body of the deceased from the

place  of  occurrence  also  created  doubt  with

regard  to  the  veracity  of  the  prosecution

version.  

23

6. The  possibility  that  the  deceased  and  the

complainant’s  side  were  aggressors  and  had

gone there and caused pharsa and lathi blows

on the accused cannot be ruled out because of

the marks on the gun Ex.3.  That the said gun

was fired in snatching all of a sudden, injuring

the deceased also cannot be ruled out from the

circumstances of the case.  

7. The  trial  court  did  not  discard  the  defence

version of right of private defence as pleaded

by the accused.

8. The trial  court observed that it is difficult to

separate falsehood from the truth, where some

material  aspects  of  the  occurrence  seem  to

have been deliberately withheld.  It is a well-

established principle of criminal jurisprudence

that  when  two  possible  and  plausible

explanations  co-exist,  the  explanation

favourable to the accused should be adopted.  

24

MAIN REASONS FOR REVERSAL OF ACQUITTAL ORDER:

39. The  High  Court  gave  the  following  reasons  for  setting

aside the acquittal:

1. A perusal of the  post-mortem report goes

to  show that  autopsy conducted on the

dead body of the deceased revealed ante-

mortem gunshot wound of entry 2.5 cm x

through and through on right side neck 2

cm lateral to midline of neck front aspect

having corresponding wound of exit 5 cm

x 4 cm on right side back of neck 5 cm

below right ear.    Therefore,  this injury

was almost horizontal.

2. Medical  examination  of  injured  Brij  Raj

Singh revealed a round lacerated wound

of  entry  0.3 cm x 0.5  cm on right side

back 10 cm away from midline and 9 cm

below  lower  border  of  scapula  having

wound of exit 1.5 cm x 0.5 cm x 0.5 on

25

right side back 0.8 cm away and lateral

from injury no. 1.   Thus, this injury was

also almost horizontal.

3. The observation made by the trial judge

that  firearm  injury  caused  to  the

deceased was vertical and to that of Brij

Raj Singh horizontal is wholly fallacious.   

4. A  layman  does  not  understand  the

distinction  between  a  cartridge

containing  pellets  and  the  bullet.    In

common parlance, particularly in villages

when a person sustains injuries by gun

shot, it is said that he has received ‘goli’

injury.  Ghurey Lal fired at his uncle with

his gun causing him Goli  (bullet)  injury

and  Brij  Raj  Singh  also  received  pellet

(chhara) injury which goes to show that

injuries received by them were caused by

two different  weapons.   There  is  hardly

26

any difference between bullet  and pellet

for  a  layman.   From  12  bore  gun

cartridge  is  fired  and  12  bore  cartridge

always  contain  pellets  though  size  of

pellets may be different.

5. A perusal of the post-mortem reports goes

to  show that  autopsy conducted on the

dead body of the deceased revealed ante-

mortem gun shot wound of entry 2.5 cms.

through and through on right side neck 2

cm lateral to midline of neck front aspect

having corresponding wound of exit 5 cm

x 4cm on right side back of neck 5 cm

below  right  ear.   Therefore,  this  injury

was almost horizontal.

6. The medical  examination of injured Brij

Raj  Singh  revealed  a  round  lacerated

wound of entry 0.3 cm x 0.5 cm on right

side back 10 cm away from midline and 9

27

cm below lower border of scapula having

wound of exit 1.5 cm x 0.5 cm x 0.5 cm

on  right  side  back  0.8  cm  away  and

lateral from injury no.1. Thus, this injury

was also almost horizontal.

7. The  learned  trial  judge  had  noted  the

evidence of B. Rai, Ballistic Expert, C.W.1

that  both  the  injuries  would  have  been

caused  by  two  shots.   While  B.  Rai,

Ballistic Expert, C.W.1 had given the said

opinion, he had also stated in his cross-

examination  by  the  prosecution  that  if

the assailant fired from place ‘C’ and the

person receiving pellet injury standing at

place ‘B’  would have turned around, on

dispersal  of  pellets  he  could  have

received  the  pellet  injuries  if  deceased

and injured both would have stood in the

same line of firing.

28

OUR CONCLUSIONS:

40. We  disagree  with  the  High  Court.   Admittedly,  the

deceased died of a bullet injury whereas Brij Raj Singh, P.W. 2

received  pellet  injuries.   It  is  well  settled  that  a  cartridge

cannot contain pellet and bullet shots together.  Therefore, the

injuries on deceased and injured P.W. 2 clearly establish that

two shots were fired from two different fire arms.

41. The High Court also observed that the laymen, meaning

thereby  the villagers,  hardly  know the  difference  between a

bullet and a pellet.  This finding has no basis, particularly in

view of the statement of all the witnesses on record.  Wherever

the  witnesses  wanted to use  ‘bullet’  they have  clearly  used

‘Goli’ or ‘bullet’ and wherever they wanted to use ‘pellet’ they

have clearly used the word ‘Chharra’ which means pellets, so

to say that the witnesses did not understand the distinction

between the two is without any basis or foundation.

42. Mr. Sushil Kumar, learned senior advocate appearing for

the appellant, submitted that the judgment of the trial court

was based on the correct evaluation of the evidence and the

29

view taken by the trial court was definitely a reasonable and

plausible.   Therefore, according to the settled legal position,

the  High  Court  was  not  justified  in  interfering  with  the

judgment of the trial court.

43. Shri  Ratnakar  Das,  learned  senior  advocate  appearing

for the respondent State submitted that the impugned order of

the High Court is consistent with the settled legal position.  He

submitted that once an order of acquittal is challenged then

the appellate court has all the powers which are exercised by

the  trial  court.   We  agree  that  the  appellate  court  is  fully

empowered  to  re-appreciate  and  re-evaluate  the  entire

evidence on record.   

44. We  deem  it  appropriate  to  deal  with  some  of  the

important cases which have been dealt with under the 1898

Code by the Privy Council and by this Court.  We would like to

crystallize  the  legal  position  in  the  hope  that  the  appellate

courts do not commit similar lapses upon dealing with future

judgments of acquittal.    

30

45. The earliest case that dealt with the controversy in issue

was Sheo Swarup v.  King Emperor AIR 1934 Privy Council

227.  In this case, the ambit and scope of the powers of the

appellate court in dealing with an appeal against acquittal has

been  aptly  elucidated  by  the  Privy  Council.   Lord  Russell

writing the judgment has observed as under: (at p. 230):

“..the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused,  a presumption certainly not  weakened  by  the  fact  that  he  has  been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate  court  in  disturbing  a  finding  of  fact arrived  at  by  a  Judge  who  had  the  advantage  of seeing the witnesses..”

The  law  succinctly  crystallized  in  this  case  has  been

consistently followed by this Court.  On proper analysis of the

ratio and findings of this case, it is revealed that the findings

of the trial court are based on the fundamental principles of

the  criminal  jurisprudence.   Presumption  of  innocence  in

favour of the accused further gets reinforced and strengthened

by  the  acquittal  of  the  trial  court.   The  appellate  court

undoubtedly  has  wide  powers  of  re-appreciating  and  re-

31

evaluating  the  entire  evidence  but  it  would  be  justified  in

interfering  with  the  judgment  of  acquittal  only  when  the

judgment  of  the  trial  court  is  palpably  wrong,  totally  ill-

founded or wholly misconceived, based on erroneous analysis

of  evidence  and  non-existent  material,  demonstrably

unsustainable or perverse.  

46. This  Court  again  in  the  case  of  Surajpal  Singh  &

Others v. State, AIR 1952 SC 52, has spelt out the powers of

the High Court.  The Court has also cautioned the Appellate

Courts  to  follow  well  established  norms  while  dealing  with

appeals from acquittal by the trial court.  The Court observed

as under:

“It is well established that in an appeal under S. 417 Criminal P.C., 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 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  can  be  reversed  only  for  very substantial and compelling reasons.”

32

47. This  Court  reiterated  the  principles  and observed  that

presumption of innocence of accused is reinforced by an order

of  the  acquittal.   The  appellate  court  could  have  interfered

only for very substantial and compelling reasons.

48. In  Tulsiram Kanu  v.  The State,  AIR 1954 SC 1, this

Court explicated that the appellate court would be justified in

reversing  the  acquittal  only  when very  substantial  question

and compelling reasons are present.  In this case, the Court

used  a  different  phrase  to  describe  the  approach  of  an

appellate  court  against  an  order  of  acquittal.   There,  the

Sessions  Court  expressed  that there was clearly  reasonable

doubt in respect of the guilt of the accused on the evidence

put before it. Kania, C.J., observed that it required good and

sufficiently cogent reasons to overcome such reasonable doubt

before the appellate court came to a different conclusion.  

49. In the same year, this Court had an occasion to deal with

Madan Mohan Singh  v.  State of Uttar Pradesh, AIR 1954

SC 637, wherein it said that the High Court had not kept the

rules  and  principles  of  administration  of  criminal  justice

33

clearly before it and that therefore the judgment was vitiated

by non-advertence to and mis-appreciation of various material

facts transpiring in evidence.   The High Court failed to give

due weight and consideration to the findings upon which the

trial court based its decision.

50. The same principle has been followed in  Atley  v.  State

of U.P. AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the

Court said:

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

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

34

due weight to the opinion of the trial court which recorded the order of acquittal.”

51. The question was again raised prominently in Aher Raja

Khima  v.  State of Saurashtra  AIR 1956 SC 217. Bose, J.

expressing the majority view observed (at p.220):

“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;  Ajmer Singh v.  State of Punjab (AIR 1953  SC 76,  at  pp.77-78);  and  if  the  trial  Court takes  a  reasonable  view  of  the  facts  of  the  case, interference under S. 417 is not justifiable unless there  are  really  strong  reasons  for  reversing  that view.  Surajpal Singh v.  State AIR 1952 SC 52 at 54.”  

52. In  Balbir Singh  v.  State of Punjab  AIR 1957 SC 216,

this  Court  again  had  an  occasion  to  examine  the  same

proposition  of  law.   The  Court  (at  page  222)  observed  as

under:

“It  is  now well  settled  that  though the  High Court has full  power to review the evidence upon which an order of acquittal is founded, it is equally well  settled  that  the  presumption of  innocence  of the  accused  person  is  further  reinforced  by  his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given  proper  weight  and  consideration;  and  the slowness  of  an  appellate  Court  in  disturbing  a finding of fact arrived at by a Judge who had the

35

advantage of seeing the witnesses must also be kept in  mind,  and  there  must  be  substantial  and compelling reasons for the appellate Court to come to  a  conclusion  different  from  that  of  the  trial Judge.”  

53. A Constitution Bench of this Court in  M.G. Agarwal  v.

State of Maharashtra AIR 1963 SC 200, observed as under:  

“There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction,  and so, it  is obvious that the High  Court's  powers  in  dealing  with  criminal appeals  are  equally  wide  whether  the  appeal  in question  is  one  against  acquittal  or  against conviction. That is one aspect of the question. The other  aspect  of  the  question  centres  round  the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said  presumption is  strengthened  by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit  of  a  reasonable  doubt  will always be  present  in the mind of  the  High Court when it  deals  with the merits  of  the  case.  As  an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court  has  the  advantage  of  watching  the demeanour  of  the  witnesses  who  have  given evidence.  Thus,  though  the  powers  of  the  High Court  in  dealing  with an appeal  against  acquittal

36

are as wide as those which it has in dealing with an appeal  against  conviction,  in  dealing  with  the former class of appeals, its approach is governed by the  overriding  consideration  flowing  from  the presumption of innocence. ……..  

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,  and so,  it  is  not necessary that  before  reversing a judgment  of  acquittal,  the High  Court  must  necessarily  characterize  the findings recorded therein as perverse.

The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case,  is  whether on the material produced by the prosecution, the High Court was justified  in  reaching  the  conclusion  that  the prosecution case  against the  appellants  had been proved  beyond  a  reasonable  doubt,  and  that  the contrary  view  taken  by  the  trial  Court  was erroneous.   In  answering  this  question,  the Supreme  Court  would,  no  doubt,  consider  the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.”

54. In Noor Khan v. State of Rajasthan, AIR 1964 SC 286,

this Court relied on the principles of law enunciated by the

Privy Council in Sheo Swarup (supra) and observed thus:

“Sections 417, 418 and 423 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.   But  in exercising  the  power  conferred  by  the  Code  and

37

before reaching its conclusions upon fact, the High Court  should  and  will  always  give  proper  weight and consideration to such matters as (1) the views of  the  trial  Judge  as  to  the  credibility  of  the witnesses;  (2)  the  presumption  of  innocence  in favour of the accused, a presumption 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.”

55. In Khedu Mohton & Others v. State of Bihar, (1970) 2

SCC 450, this Court gave the appellate court broad guidelines

as to when it could properly disturb an acquittal.  The Court

observed as under:

“3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of- innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions.  If two reasonable conclusions  can  be  reached  on  the  basis  of  the evidence on record then the view in support of the acquittal  of  the accused should  be  preferred.  The fact  that  the  High  Court  is  inclined  to  take  a different  view  of  the  evidence  on  record  is  not sufficient to interfere with the order of acquittal.”

38

(emphasis supplied)

56. In  Shivaji  Sahabrao Bobade & Another  v.  State of

Maharashtra, (1973) 2 SCC 793, the Court observed thus:

“An appellant aggrieved by the overturning of his  acquittal  deserves  the  final  court's  deeper concern  on  fundamental  principles  of  criminal justice……

…….. But we hasten to add even here that, although  the  learned  judges  of  the  High  Court have  not  expressly  stated so,  they have  been  at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their  conscience  whether  there  was  credible testimony  warranting,  on  a  fair  consideration,  a reversal  of  the  acquittal  registered  by  the  court below. 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,  In  our  view  the  High  Court's judgment survives this exacting standard.”

57. In  Lekha Yadav  v.  State of Bihar  (1973) 2 SCC 424,

the Court following the case of  Sheo Swarup  (supra) again

reiterated the legal position as under:

39

“The different phraseology used in the judgments of this Court such as-

(a) substantial and compelling reasons:

(b) good and sufficiently cogent reasons;  

(c) 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 but should express the reasons in its judgment which led it to hold that the acquittal was not justified.”  

58. In Khem Karan & Others v. State of U.P. & Another

AIR 1974 SC 1567, this Court observed:

“Neither mere possibilities nor remote possibilities nor  mere  doubts  which  are  not  reasonable  can, without danger to the administration of justice, be the  foundation  of  the  acquittal  of  an  accused person,  if  there  is  otherwise  fairly  credible testimony.”

59. In  Bishan  Singh  & Others  v.  The  State  of  Punjab

(1974)  3  SCC 288,  Justice  Khanna speaking  for  the  Court

provided the legal position:

40

“22. It is well settled that the High Court in appeal under  Section 417 of  the  CrPC has full  power  to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed.  No limitation should  be  placed  upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the  presumption  of  innocence  in  favour  of  the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; &  (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.”

60. In  Umedbhai  Jadavbhai  v.  The  State  of  Gujarat

(1978) 1 SCC 228, the Court observed thus:

“In an appeal against acquittal, the High Court would not ordinarily interfere with the Trial Court’s conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice.”

61. In  B.N. Mutto & Another  v.  Dr. T.K. Nandi  (1979)  1

SCC 361, the Court observed thus:

“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

41

the  evidence  are  possible,  one  must  necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views,  the  possible  view  in  favour  of  the  accused must  be  as  nearly  reasonably  probable  as  that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence  in  favour  of  the  accused  must  be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may  flit  through  the  minds  of  any  of  us  about almost anything at some time or other, it does not mean  a  doubt  begotten  by  sympathy  out  of reluctance  to  convict;  it  means  a  real  doubt,  a doubt founded upon reasons.  [Salmond J. in his charge  to  the  jury  in  R.V.  Fantle  reported  in 1959 Criminal Law Review 584.]"             

{emphasis supplied}

62. In  Tota Singh & Another v.  State of Punjab (1987) 2

SCC  529,  the  Court  reiterated  the  same  principle  in  the

following words:

“This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on  a  re-appreciation  of  the  evidence  to  reach  a conclusion  which  is  at  variance  with  the  one recorded in the order  of  acquittal  passed by the court  below  will  not  constitute  a  valid  and sufficient  ground  for  setting  aside  the  acquittal. The jurisdiction of the appellate court in dealing with  an  appeal  against  an  order  of  acquittal  is circumscribed  by  the  limitation  that  no interference  is  to  be  made  with  the  order  of

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acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion  recorded  by  the  court  below  is  such which could not have been possibly arrived at by any court  acting reasonably and judiciously  and is, therefore, liable to be characterised as perverse. Where two views are possible  on an appraisal of the  evidence  adduced  in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the  view  taken  by  the  court  below  on  its consideration of the evidence is erroneous.”

(emphasis supplied)

63. In  Ram Kumar  v.  State  of  Haryana  1995  Supp.  (1)

SCC 248, this Court had another occasion to deal with a case

where the court dealt with the powers of the High Court in

appeal from acquittal.  The Court observed as under:

“.. the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order  of  acquittal  to  reassess  the  evidence  and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against  the  order  of  conviction.  But  as  a  rule  of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness  of  appellate  court in justifying a finding of fact arrived at by a judge who had  the  advantage  of  of  seeing  the  witness.  No doubt it is settled law that if the main grounds on which  the  Court  below  has  based  its  order acquitting  the  accused,  are  reasonable  and plausible,  and  the  same  cannot  entirely  and

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effectively  be  dislodged  or  demolished,  the  High Court should not disturb the order of acquittal. We shall,  therefore,  examine  the  evidence  and  the material on record to see whether the conclusions recorded  by  the  Trial  Court  in  acquitting  the appellant are reasonable and plausible or the same are  vitiated  by  some  manifest  illegality  or  the conclusion  recorded  by  the  Trial  Court  are  such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.”

64. This Court time and again has provided direction as to

when the High Courts should interfere with an acquittal. In

Madan Lal  v.  State of J&K,  (1997)  7 SCC 677, the Court

observed as under:

“8.  …….. that there  must  be  “sufficient  and compelling reasons” or “good and sufficiently cogent reasons” for the appellate court to alter an order of acquittal to one of conviction……..”

65. In  Sambasivan & Others  v.  State of Kerala  (1998) 5

SCC 412, while relying on the case of Ramesh Babulal Doshi

(Supra), the Court observed thus:  

7. The principles with regard to the scope of the  powers  of  the  appellate  court  in  an  appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less  than  in  an  appeal  against  conviction.  But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court

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in  acquitting  an  accused  is  found  to  be  clearly erroneous in its consideration of evidence on record and  in  deducing  conclusions  therefrom  that  the appellate  court  can  interfere  with  the  order  of acquittal.”

66. In Bhagwan Singh & Others v. State of M.P. (2002) 4

SCC 85, the Court repeated one of the fundamental principles

of criminal jurisprudence 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  Court

observed as under:-

“7. 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 a Judge  made  guidelines  for  circumspection.  The paramount consideration of the court is to ensure that miscarriage of justice is avoided.”  

67. In Harijana Thirupala & Others v. Public Prosecutor,

High Court of A.P., Hyderabad (2002) 6 SCC 470, this Court

again had an occasion to deal with the settled principles of law

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restated by several decisions of this Court.  Despite a number

of  judgments,  High Courts continue to fail  to keep them in

mind before reaching a conclusion.  The Court observed thus:

“10. The principles to be kept in mind in our system  of  administration  of  criminal  justice  are stated  and  restated  in  several  decisions  of  this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or  otherwise  of  the  accused  in  a  given case.  The case  on  hand  is  one  such  case.  Hence  it  is  felt necessary  to  remind  about  the  well-settled principles  again.  It  is  desirable  and  useful  to remind  and  keep  in  mind  these  principles  in deciding a case.

11. In  our  administration of  criminal  justice an accused is presumed to be innocent unless such a  presumption  is  rebutted  by  the  prosecution  by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence,  the view favourable to the accused is to be accepted. In cases where the court  entertains  reasonable  doubt  regarding  the guilt  of  the  accused  the  benefit  of  such  doubt should  go  in  favour  of  the  accused.  At  the  same time, the court must not reject the evidence of the prosecution  taking  it  as  false,  untrustworthy  or unreliable  on fanciful  grounds  or  on the  basis  of conjectures  and  surmises.  The  case  of  the prosecution  must  be  judged  as  a  whole  having regard  to  the  totality  of  the  evidence.  In appreciating the evidence the approach of the court must  be  integrated  not  truncated  or  isolated.  In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion

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as  to  the  guilt  or  otherwise  of  the  accused.  In reaching  a  conclusion  about  the  guilt  of  the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.

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  the  order  of  acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order  of  acquittal  to  examine  and  discuss  the reasons  given  by  the  trial  court  to  acquit  the accused and then to dispel those reasons. If  the High  Court  fails  to  make  such  an  exercise  the judgment will suffer from serious infirmity.”

(emphasis supplied)

68. In  C. Antony  v.  K.G. Raghavan Nair,  (2003) 1 SCC 1

had to reiterate the legal  position in cases where there has

been acquittal by the trial courts.  This Court observed thus:

“6. This Court in a number of cases has held that though the appellate  court  has full  power  to review  the  evidence  upon  which  the  order  of acquittal is founded, still while exercising such an

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appellate power in a case of acquittal, the appellate court,  should  not  only  consider  every  matter  on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing  the  witnesses  in  the  witness  box  and  the presumption of innocence is not weakened by the order  of  acquittal,  and  in  such  cases  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.”  

69. In  State of Karnataka  v.  K. Gopalkrishna,  (2005)  9

SCC 291, while dealing with an appeal against acquittal, the

Court observed:

“In such an appeal  the Appellate  Court does not lightly disturb the findings of fact recorded by the  Court  below.  If  on  the  basis  of  the  same evidence,  two  views  are  reasonably  possible,  and the view favouring the accused is accepted by the Court  below,  that  is  sufficient  for  upholding  the order of acquittal. However, if the Appellate Court comes  to  the  conclusion  that  the  findings  of  the Court  below  are  wholly  unreasonable  or  perverse and not based on the evidence on record, or suffers from  serious  illegality  including  ignorance  or misreading  of  evidence  on  record,  the  Appellate Court will be justified in setting aside such an order of acquittal.”

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70. In The State of Goa v. Sanjay Thakran, (2007) 3 SCC

755, this Court relied on the judgment in State of Rajasthan

v. Raja Ram (2003) 8 SCC 180 and observed as under:

“15. 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 principle to be followed by appellate court considering the appeal against  the  judgment  of  acquittal  is  to  interfere only  when  there  are  compelling  and  substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.”  

The Court further held as follows:

“16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is  vitiated  by  some  manifest  illegality  and  the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be  characterized  as  perverse.  Merely  because  two views are  possible,  the court  of  appeal  would  not take  the  view  which  would  upset  the  judgment delivered by the court below.”

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71. In  Chandrappa  &  Others v.  State  of  Karnataka

(2007) 4 SCC 415, this Court held:

“(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 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.                                                          

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(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.”

72. The following principles emerge from the cases above:

1. The  appellate  court  may  review  the  evidence  in

appeals against acquittal under sections 378 and 386

of the Criminal Procedure Code, 1973.  Its power of

reviewing evidence is wide and the appellate court can

reappreciate  the  entire  evidence  on  record.  It  can

review the trial court’s conclusion with respect to both

facts and law.  

2. The accused is presumed innocent until proven guilty.

The accused possessed this presumption when he was

before  the  trial  court.  The  trial  court’s  acquittal

bolsters the presumption that he is innocent.  

3. Due or proper weight and consideration must be given

to  the  trial  court’s  decision.  This  is  especially  true

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when a witness’ credibility is at issue.  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  trial  court  was

wrong.

73. In light of the above, the High Court and other appellate

courts should follow the well settled principles crystallized by

number  of  judgments if  it  is  going to  overrule  or otherwise

disturb the trial court’s acquittal:

1. The  appellate  court  may  only  overrule  or  otherwise

disturb  the  trial  court’s  acquittal  if  it  has  “very

substantial and compelling reasons” for doing so.   

A number of instances arise in which the appellate

court would have “very substantial and compelling

reasons” to discard the trial court’s decision. “Very

substantial and compelling reasons” exist when:

i) The trial court’s conclusion with regard to the

facts is palpably wrong;  

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ii) The  trial  court’s  decision  was  based  on  an

erroneous view of law;   

iii) The trial court’s judgment is likely to result in

“grave miscarriage of justice”;   

iv) The  entire  approach  of  the  trial  court  in

dealing with the evidence was patently illegal;  

v) The  trial  court’s  judgment  was  manifestly

unjust and unreasonable;   

vi) The  trial  court  has  ignored  the  evidence  or

misread the material evidence or has ignored

material  documents  like  dying  declarations/

report of the Ballistic expert, etc.

vii) This  list  is  intended  to  be  illustrative,  not

exhaustive.   

2. The Appellate Court must always give proper weight

and consideration to the findings of the trial court.  

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3. If  two reasonable views can be reached - one that

leads to acquittal, the other to conviction - the High

Courts/appellate courts must rule in favour of the

accused.   

74. Had the well settled principles been followed by the High

Court,  the  accused  would  have  been  set  free  long  ago.

Though the appellate court’s power is wide and extensive, it

must be used with great care and caution.   

75. We have considered the entire evidence and documents

on  record  and  the  reasoning  given  by  the  trial  court  for

acquitting  the  accused  and  also  the  reasoning  of  the  High

Court for reversal of the judgment of acquittal.  We have also

dealt with a number of cases decided by the Privy Council and

this Court since 1934.  In our considered opinion, the trial

court carefully scrutinized the entire evidence and documents

on  record  and  arrived  at  the  correct  conclusion.   We  are

clearly  of  the  opinion that the  reasoning given by the High

Court for overturning the judgment of the trial court is wholly

unsustainable  and contrary  to  the  settled  principles  of  law

crystallized by a series of judgment.

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76. On marshalling the entire evidence and the documents

on  record,  the  view  taken  by  the  trial  court  is  certainly  a

possible  and  plausible  view.   The  settled  legal  position  as

explained above is that if the trial court’s view is possible and

plausible, the High Court should not substitute the same by

its own possible views.  The difference in treatment of the case

by two courts below is particularly noticeable in the manner in

which they have dealt with the prosecution evidence.  While

the  trial  court  took  great  pain  in  discussing  all  important

material aspects and to record its opinion on every material

and relevant point, the learned Judges of the High Court have

reversed the judgment of the trial court without placing the

very  substantial  reasons  given  by  it  in  support  of  its

conclusion.   The trial court after marshalling the evidence on

record  came  to  the  conclusion  that  there  were  serious

infirmities  in  the  prosecution’s  story.   Following  the  settled

principles of law, it gave the benefit of doubt to the accused.

In the impugned judgment, the High Court totally ignored the

settled legal position and set aside the well reasoned judgment

of the trial court.   

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77. The  trial  court  categorically  came  to  the  finding  that

when  the  substratum  of  the  evidence  of  the  prosecution

witnesses  was  false,  then  the  prosecution  case  has  to  be

discarded.   When  the  trial  court  finds  so  many  serious

infirmities in the prosecution version, then the trial court was

virtually left with no choice but to give benefit of doubt to the

accused  according  to  the  settled  principles  of  criminal

jurisprudence.

78. On careful analysis of the entire evidence on record, we

are of the view that the reasons given by the High Court for

reversing  the  judgment  of  acquittal  is  unsustainable  and

contrary to settled principles of law.   The trial court has the

advantage of watching the demeanour of the witnesses who

have given evidence, therefore, the appellate court should be

slow to  interfere  with  the  decisions  of  the  trial  court.   An

acquittal  by  the  trial  court  should  not  be  interfered  with

unless it is totally perverse or wholly unsustainable.

79. On consideration of the totality of the circumstances, the

appeal  filed  by  the  appellant  is  allowed  and  the  impugned

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judgment  passed  by  the  High  Court  is  set  aside.   The

appellant would be set at liberty forthwith unless required in

any other case.

...............................J.      (R. V. Raveendran)

   ..............................J.                                                      (Dalveer Bhandari)

New Delhi; July 30, 2008.

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