REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO.1278 OF 2001

Murugan and Anr. …Appellants

Versus

State Rep. by Public Prosecutor Madras, Tamil Nadu & Anr. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the learned

Single  Judge  of  the  Madras  High  Court  setting  aside  the

judgment of acquittal recorded by learned Principal, Assistant

Sessions  Judge,  Tirunelveli.  The  appellant  faced  trial  along

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with one Velliah for alleged commission of offences punishable

under  Section  307  and  307  read  with  Section  109  of  the

Indian  Penal  Code,  1860  (in  short  ‘IPC’).   Though the  trial

Court  found  that  the  prosecution  has  not  established  the

case, in appeal filed by the State it was held by the High Court

that the prosecution established the accusations against the

appellants.  But  the  acquittal  so  far  as  the  Velliah  A3  is

concerned, the High Court confirmed the acquittal.

2. Background facts in a nutshell are as follows:

Sankaralingam (PW1), Ramaiah (PW2) and Paramasivam

(PW6)  are  brothers.  They  reside  at  Marugal  Kurichi  village.

Accused 1 to 3 are also residing in the same village.  Their

house is situated very near to the house of PWs. 1, 2 and 6.

Accused 1 and 2 are brothers.     

On  2.10.1989  at  about  5.00  p.m.  Kannammal,  the

mother of PWs. 1 and 2 went to the corner of the street  to

collect  water  from  the  common  water  pipe.   The  third

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accused’s  wife  Manickam  also  came  to  take  water.   While

collecting water from the common pipe, there was a quarrel

between  Kannammal  and  Manickam,  the  wife  of  third

accused.  Ramaiah (PW 2) who noticed this, went there and

separated them and took his mother to his house.    

Next  day  i.e.  3.10.1989  at  about  7.30  a.m.  Ramaiah

(PW.2),  Sankaralingam  (PW.1)  and  one  Manickam,  wife  of

another  brother,  went  to  the  well,  which  is  situated  in

Nallakannau Thevar’s garden, in order to take bath.  When the

first accused came to know about the occurrence which took

place  on  the  earlier  day,  he  had  grievance  against  PW.2

thinking that PW.2 abused the wife of the third respondent in

support of his mother.

At about 7.30 a.m. when PWs. 1 and 2 and another went

near the well,  A1 to A3 waylaid them.  A1 and A2 were having

‘Aruval’ with them. A3 caught hold of PW.2 from behind his

back.  At that time, A1 and A2 with ‘Aruval’  attacked PW.2

indiscriminately  on  the  back,  left  shoulder,  right  shoulder,

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hands, etc. PW.2 received number of bleeding injuries all over

the body and began to cry.  Sankaralingam (PW.1) and Poolu

Thevar  (PW.5)  and  two  others  went  near  the  injured.   The

accused persons threatened them that they would kill  them

also.  PW.2 swooned and fell on the ground.  Thereafter, the

accused took to their heels.

PWs.  1  and  5  took  the  victim  in  a  car  to  Naguneri

Government  Hospital  at  about  8.30  a.m.   Dr.  Andiappan

(PW.3) examined the victim and found nine injuries.  He also

sent Ex.P-2 intimation to the Nanguneri Police Station. Head

Constable  (PW.7)  came  and recorded  statement  from PW.1.

Ex.P-1 is the complaint and the same was registered against

the accused for the offences under Sections 341, 342 and 307

IPC. Ex.P-7 is the printed FIR.  Doctor (PW.3) sent the victim

to the Tirunelveli  Hospital for further treatment.  He issued

Ex.P-3 wound certificate. Doctor (PW.4) took X-Ray and issued

Ex.P-4 X-Ray report and the X-Rays were marked as M.Os. 3

to 9.

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Gnana Diraviyam (PW.8), the Inspector of Police, took up

further investigation and went to the scene and examined the

witnesses.   He  prepared  Ex.P-5  observation  mahazar  and

Ex.P-8  rough  sketch.  He  also  recovered  sample  earth  and

blood stained earth. Thereafter, he went to the hospital and

recorded  the  statement  from  PW.2.   Since  the  PW.8  was

subsequently transferred, Periasamy (PW.9) another Inspector

of Police, took up further investigation.                  

3. After completion of investigation charge sheet was filed

and  the  accused  persons  faced  trial  as  they  denied  the

accusations.  Nine  witnesses  were  examined  to  further  the

prosecution  version.  Trial  court  found  the  evidence  of

prosecution  witnesses  to  be  not  cogent  and  credible  and

accordingly directed acquittal.  State preferred appeal against

acquittal.  High Court found that the reasoning indicated by

the Trial Court to direct the acquittal cannot be maintained. It

is  to  be  noted  that  the  acquittal  was  directed  by  the  Trial

Court, inter alia, on the following grounds:      

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(i) Recording  of  Ex.P-1  statement  given  by  PW.1  by PW.7 is doubtful.   According to PW.3 Doctor,  the injured  was  conscious,  when  he  was  admitted  in the hospital.   PWs. 1 and 7 would state  that the complaint was given by PW.1 which was recorded by PW.7, since PW.2 was unconscious.  There is no reason  as  to  why  PW.7  had  to  obtain  Ex.P-1 complaint from PW.1, when PW.2 was conscious.

(ii) PW.1 could not have seen the occurrence.  PW.5, an independent  eye  witness,  would  state  that  PW.1 came  to  the  scene  only  after  the  occurrence. Therefore, the evidence of PW.1 is unreliable.   

(iii) PW.6 stated in the court that he had also seen the occurrence.  According  to  PW.8,  the  investigating officer, PW.6 was not the eye-witness and he did not give  any  statement  that  he  saw  the  occurrence. Therefore, the evidence of PW.6 is unreliable.

(iv) PW.7 head constable recorded Ex.P-1 and the same was  written  by  him.   But,  in  evidence,  he  would state that he dictated to a constable and the said constable  had  written  the  same.   There  is  no evidence to show that any constable accompanied PW.7. Therefore  PW.7 had not recorded Ex.P-1 at the hospital.   

(v) PW.5 an independent witness, would state that A1 and A2 alone were present and attacked PW.2. He did not refer about A3. Therefore, A3 could not have been  present.  Furthermore,  A3  produced  a certificate  alongwith  his  statement  under  Section 313 Cr.P.C. to show that during the relevant time, he  was  working  in  the  mill  in  which  he  was employed.        

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(vi) Both in Ex.P-1 and in the evidence of PWs.1 and 2, there is a reference about one Thangapandi stating that he was also one of the eye-witnesses.  The said eye-witness was not examined.  There is no reason for his non-examination.   

(vii) According to PWs.1 and 2, both A1 and A2 attacked PW.2 indiscriminately.  But according to PW.5, after first cut,  PW.2 ran to a distance of about 50 feet and  thereafter,  the  further  cuts  given  by  the accused  with ‘Aruval” fell on PW.2 victim.  So, there is  a  contradiction  between  the  evidence  of  PWs.1 and 2 on the one side and the evidence of PW.5 on the other side.   

4. High Court found that the conclusions arrived at by the

Trial Court were not sustainable.  After analyzing the evidence

of PWs. 1, 2 and 5 it was held that the accusations have been

established.   Accordingly,  the  appellants  were  convicted  for

the offence punishable under Section 307 IPC and each was

sentenced to undergo RI for four years and to pay a fine of

Rs.5,000/- with default stipulation.    

5. In  support  of  the  appeal,  learned  counsel  for  the

appellant submitted that the Trial Court had rightly rejected

the prosecution version taking note of the fact that evidence of

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PWs 1, 2 and 5 are irreconcilable. It was also submitted that

the evidence of PWs. 1, 2 and 5 is contradictory to each other.

In any event, it was submitted that the injuries were on non-

vital parts and, therefore, Section 307 IPC has no application.

Learned  counsel  for  the  respondent,  on  the  other  hand,

supported the judgment of the High Court.    

6. PW3- the doctor attached to the Naguneri  Government

Hospital,  Tenkasi  examined  PW  2  at  about  8.15  a.m.  on

3.10.1989.  He issued the wound certificate ExP3. He found

the following injuries on him:

“i. A bleeding lacerated wound 10cm x 5 cm. x 4cm on

medical  aspect  of  right forearm muscles  and (NC)

exposed.

ii. A bleeding lacerated wound  3 cm x 1 cm x 1 cm in

middle right forearm.

iii. A lacerated bleeding wound in the palman aspect of

2 cm x 1 cm x 1 cm of right middle and index finger

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seen and lacerated wound on the tip of right ring

and little finger measuring 1 cm x 1 cm x 1 cm .

iv. An incised wound 3 cm x 2 cm x 1 cm in upper

aspect of right arm.

v. A  bleeding  lacerated  wound  in  the  left  shoulder

outer to the lateral end of left collar bone 4 cm x 2

cm x 1 cm seen.

vi. A bleeding incised wound in the upper part of left

arm 3 cm x 1cm x ½ cm.

vii. A bleeding incised wound 15 cm x 6 cm x 4 cm left

side of back of chest just below left  infrascapular

angle.

viii. A bleeding incised wound in the palman aspect of

left index middle and ring finger and thumb each

measured  6 cm x 2 cm x 1 cm fracture of middle

finger MCP joint.

ix. A bleeding lacerated wound in the lateral aspect of

left forearm 3 cm x 2 cm x 1 cm.

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As  per  the  wound  certificate  Ex.P3,  injury  No.3  and  9  is

grievous in nature and the other injuries are simple injuries.

7. So far as the evidence of PWs. 1, 2 and 5 is concerned, it

is clear that P.W.2 was indiscriminately attacked by Al and A2

with 'Aruval'. As a result of those injuries, the victim (P.W.2)

fell on the ground.

8. According to P.W.5, as soon as P.W.2 fell on the ground,

he became unconscious and thereafter, the accused persons

ran away from the scene. This occurrence took place at about

7.30 A.M. and the victim was taken to the hospital at about

8.15 A.M. P.W.3 Doctor stated that the victim was conscious

and the victim stated to him that the he was attacked by three

persons with 'Aruval'.

9. P.W.  3  Doctor  further  stated  that  he  gave  Ex.P-2

intimation to the  police,  when P.W.  2  was admitted  in the

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hospital. On receipt of Ex.P-2, P.W.7 Head constable rushed

to Nanguneri Government hospital.  At that time, P.W.1 was

present in the hospital and gave Ex. P-1 statement to P.W.7.

10. It  is  true  that  P.W.7  stated  that  he  obtained  Ex.P-1

complaint  from P.W.1,  when P.W.2 was unconscious.  P.W.1

stated that when P.W.2 victim was taken to the hospital, he

was in unconscious state and after admitting the victim in the

hospital,  P.W.  3  Doctor  gave  treatment  to  him.  So,  when

treatment was being given by P.W.3 Doctor, P.W.7 came and

at that time, he was informed by P.W. 1 that P.W. 2 was not in

a position to give statement, since he was unconscious.  

11. Even assuming that P.W.2 was conscious at that time,

the nine serious injuries found on various parts of the body of

the  victim would clearly  show that  he  could  not  have  been

able to give full details to P.W.7. Under those circumstances,

obtaining of Ex. P-1 complaint from P.W. 1 is quite proper.

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12. Merely  because  P.W.2  was  conscious  at  that  time,  it

cannot  be  said  that  the  statement  should  not  have  been

recorded  from  P.W.1  and  the  same  is  doubtful.  No  law

prohibits the police officer from recording complaint relating to

the occurrence, that too, from an eye witness. The ground of

acquittal  as  recorded  by  trial  Court  is  not  at  all  a  proper

ground.

13. Secondly, accordingly to the trial court, P.W. 1 could not

have been seen the occurrence.

14. This  again  is  not  the  reasoning  based  on  evidence.

According to both P.Ws. 1 and 2, they went to take bath in the

well one after another. P.W.5 stated that after hearing the cry

of P.W.2, P.W.1 and others came to the scene. This would not

mean that  P.W.1 did  not accompany P.W.2.  As a matter  of

fact, even according to P.W.5, P.Ws. 1 and 5 took the victim in

a taxi to Naguneri Hospital.

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15.  The occurrence took place in a day light at 7.30 A.M.

The house of accused and P.Ws. 1 & 2 are situated nearby

and the well also is situated just two furlongs away from the

village. Under those circumstances, it cannot be said that P.W.

1 could not have accompanied P.W.2 to take bath. Therefore,

this ground of acquittal was rightly held by the High Court to

be untenable.

16. We find that the analysis made by the High Court to set

aside  the order  does  not  suffer  from any infirmity.  Learned

counsel for the appellant submitted that an appeal against the

acquittal cannot be interfered by the Appellate Court except

for the compelling reasons.   

17. The  appellants  have  questioned  the  correctness  of  the

High  Court’s  judgment.  According  to  them,  the  High  Court

had  not  kept  in  view  the  parameters  of  appeal  against

acquittal. It is submitted that even if two views are possible,

the view supporting the accused had to be accepted and since

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the trial Court had precisely done it and there was no reason

to interfere with the judgment of the trial Court.  

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

proper to consider and clarify the legal position first. Chapter

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

1973 (hereinafter referred to as “the present Code”) deals with

appeals. Section 372 expressly declares that no appeal shall

lie from any judgment or order of a criminal court except as

provided by the Code or by any other law for the time being in

force.  Section  373  provides  for  filing  of  appeals  in  certain

cases.  Section 374 allows appeals  from convictions.  Section

375 bars appeals in cases where the accused pleads guilty.

Likewise,  no  appeal  is  maintainable  in  petty  cases  (Section

376).  

19. Section  377  permits  appeals  by  the  State  for

enhancement of sentence. Section 378 confers power on the

State to present an appeal to the High Court from an order of

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acquittal. The said section is material and may be quoted in

extenso:

“378.  Appeal  in  case  of  acquittal :(1)  Save  as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),

2  [(a)  the District  Magistrate may,  in any case, direct the Public Prosecutor to present an Appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an Appeal to the High Court from an original or appellate order of an acquittal  passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.";].

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by  the  Delhi  Special  Police  Establishment constituted  under  the  Delhi  Special  Police Establishment Act, 1946 (25 of 1946) or by any other  agency  empowered  to  make  investigation into an offence under any Central Act other than this  Code,  3  [the  Central  Government  may, subject to the provisions of sub-section (3), also direct  the  Public  Prosecutor  to  present  an Appeal--

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(a)  to  the  Court  of  Session,  from  an  order  of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than  a  High  Court  [not  being  an  order  under clause (a)] or an order of acquittal passed by the Court of Session in revision].

(3)  No  Appeal  under  sub-section  (1)  or  sub- section (2)  shall  be entertained except  with the leave of the High Court.

(4) If such an order of acquittal is passed in any case  instituted  upon  complaint  and  the  High Court,  on  an  application  made  to  it  by  the complainant in this behalf, grants special leave to Appeal  from  the  order  of  acquittal,  the complainant may present such an Appeal to the High Court.

(5)  No application under sub-section (4)  for the grant of special leave to Appeal from an order of acquittal shall be entertained by the High Court after  the  expiry  of  six  months,  where  the complainant is a public servant, and sixty days in every other case,  computed from the date of that order of acquittal.

(6)  If,  in  any  case,  the  application  under  sub- section (4) for the grant of special leave to Appeal from an order of acquittal is refused, no Appeal from that order of acquittal shall lie under sub- section (1) or under sub-section (2).

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20. Whereas  Sections  379-380  cover  special  cases  of

appeals, other sections lay down procedure to be followed by

appellate courts.

21. It may be stated that more or less similar provisions were

found in the Code  of  Criminal  Procedure,  1898 (hereinafter

referred to as “the old Code”) which came up for consideration

before various High Courts,  Judicial Committee of the Privy

Council as also before this Court. Since in the present appeal,

we have been called upon to decide the ambit and scope of the

power of an appellate court in an appeal against an order of

acquittal, we have confined ourselves to one aspect only i.e. an

appeal against an order of acquittal.

22. Bare reading of Section 378 of the present Code (appeal

in  case  of  acquittal)  quoted  above,  makes  it  clear  that  no

restrictions  have  been  imposed  by  the  legislature  on  the

powers of the appellate court in dealing with appeals against

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

full power to reappreciate, review and reconsider the evidence

at  large,  the  material  on  which  the  order  of  acquittal  is

founded and to reach its own conclusions on such evidence.

Both questions of fact and of law are open to determination by

the High Court in an appeal against an order of acquittal.

23. It  cannot, however,  be forgotten that in case of acquittal,

there is a double presumption in favour of the accused.  Firstly,

the  presumption  of  innocence  is  available  to  him  under  the

fundamental  principle  of  criminal  jurisprudence  that  every

person should be presumed to be innocent unless he is proved to

be  guilty  by a  competent  court  of  law.  Secondly,  the  accused

having secured an acquittal, the presumption of his innocence is

certainly  not  weakened  but  reinforced,  reaffirmed  and

strengthened by the trial court.

24. Though  the  above  principles  are  well  established,  a

different note was struck in several decisions by various High

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Courts and even by this Court. It is, therefore, appropriate if

we consider some of the leading decisions on the point.

25. The first important decision was rendered by the Judicial

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

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

by the trial court and the local Government directed the Public

Prosecutor  to present  an appeal  to the High Court  from an

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

Section 378 of  the present Code).  At the time of hearing of

appeal before the High Court, it was contended on behalf of

the accused that in an appeal from an order of acquittal,  it

was  not  open  to  the  appellate  court  to  interfere  with  the

findings  of  fact  recorded  by  the  trial  Judge  unless  such

findings could not have been reached by him had there not

been some perversity or incompetence on his part. The High

Court, however, declined to accept the said view. It held that

no condition was imposed on the High Court in such appeal.

It accordingly reviewed all the evidence in the case and having

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formed an opinion of its weight and reliability different from

that  of  the  trial  Judge,  recorded  an  order  of  conviction.  A

petition was presented to His Majesty in Council for leave to

appeal  on  the  ground  that  conflicting  views  had  been

expressed by the High Courts in different parts of India upon

the question whether in an appeal from an order of acquittal,

an appellate court had the power to interfere with the findings

of fact recorded by the trial Judge. Their Lordships thought it

fit  to  clarify  the  legal  position  and  accordingly  upon  the

“humble advice of their Lordships”, leave was granted by His

Majesty.  The  case  was,  thereafter,  argued.  The  Committee

considered  the  scheme  and  interpreting  Section  417  of  the

Code (old Code) observed that there was no indication in the

Code  of  any  limitation  or  restriction  on  the  High  Court  in

exercise  of  powers as an Appellate  Tribunal.  The  Code also

made no distinction as regards powers of the High Court in

dealing with an appeal against acquittal and an appeal against

conviction.  Though  several  authorities  were  cited  revealing

different views by the High Courts dealing with an appeal from

an order of acquittal, the Committee did not think it proper to

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discuss all the cases.

26. Lord Russel summed up the legal position thus:  

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

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

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

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27. The Committee, however, cautioned appellate courts and

stated: (IA p.404)

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

(emphasis supplied)

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

Committee reiterated the above view in  Sheo Swarup (Supra)

and held that in an appeal against acquittal, the High Court

has full powers to review and to reverse acquittal.

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29. So  far  as  this  Court  is  concerned,  probably  the  first

decision on the point was Prandas v.  State (AIR 1954 SC 36)

(though the case was decided on 14-3-1950, it was reported

only in 1954). In that case, the accused was acquitted by the

trial  court.  The  Provincial  Government  preferred  an  appeal

which was allowed and the accused was convicted for offences

punishable under Sections 302 and 323 IPC. The High Court,

for  convicting  the  accused,  placed  reliance  on  certain

eyewitnesses.

30. Upholding the decision of the High Court and following

the  proposition  of  law in  Sheo  Swarup  (supra),  a  six-Judge

Bench held as follows:

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

    (emphasis supplied)

23

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

Bench observed that it was well established that in an appeal

under Section 417 of the (old) Code, the High Court had full

power to review the evidence upon which the order of acquittal

was  founded.  But  it  was  equally  well  settled  that  the

presumption  of  innocence  of  the  accused  was  further

reinforced by his acquittal by the trial court, and the findings

of  the  trial  court  which  had  the  advantage  of  seeing  the

witnesses and hearing their evidence could be reversed only

for very substantial and compelling reasons.

32. In  Ajmer  Singh v.  State of  Punjab (1953 SCR 418)  the

accused was acquitted by the trial court but was convicted by

the  High  Court  in  an  appeal  against  acquittal  filed  by  the

State.  The aggrieved accused approached this Court.  It  was

contended by him that there were “no compelling reasons” for

setting aside the order of acquittal and due and proper weight

had not been given by the High Court to the opinion of the

24

trial  court  as  regards  the  credibility  of  witnesses  seen  and

examined.  It  was  also  commented  that  the  High  Court

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

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

his duty to explain the circumstances appearing in evidence

against  him  and  he  cannot  take  shelter  behind  the

presumption  of  innocence  and  cannot  state  that  the  law

entitles him to keep his lips sealed”.

Upholding the contention, this Court said:  

“We think this criticism is well founded. After an order  of  acquittal  has  been  made  the presumption of innocence is further reinforced by that  order,  and  that  being  so,  the  trial  court’s decision can be reversed not on the ground that the  accused  had  failed  to  explain  the circumstances  appearing  against  him  but  only for very substantial and compelling reasons.”

(emphasis supplied)   

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

said:  

25

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

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

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

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

           (emphasis supplied)   

26

34. In  Aher Raja Khima v.  State of Saurashtra (1955) 2 SCR

1285)  the accused was prosecuted under  Sections 302 and

447 IPC. He was acquitted by the trial court but convicted by

the  High  Court.  Dealing  with  the  power  of  the  High  Court

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

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

well settled that it is not enough for the High Court to take a

different view of the evidence;  there must also be substantial

and  compelling  reasons  for  holding  that  the  trial  court  was

wrong.”  

        (emphasis supplied)

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

three-Judge Bench considered almost all leading decisions on

the point and observed that there was no difficulty in applying

the principles laid down by the Privy Council and accepted by

the Supreme Court. The Court, however, noted that appellate

courts  found  considerable  difficulty  in  understanding  the

scope of the words “substantial and compelling reasons” used

in certain decisions. It was observed inter-alia as follows:

27

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

The Court concluded as follows:   “9. The foregoing discussion yields the following results: (1) an appellate court has full  power to review  the  evidence  upon  which  the  order  of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of  such  an  appeal;  and  (3)  the  different phraseology used in the judgments of this Court, such as, (i) ‘substantial and compelling reasons’, (ii) ‘good and sufficiently cogent reasons’, and (iii) ‘strong reasons’  are  not  intended  to curtail  the undoubted  power  of  an  appellate  court  in  an appeal  against  acquittal  to  review  the  entire evidence and to come to its own conclusion; but in  doing  so  it  should  not  only  consider  every matter  on  record  having  a  bearing  on  the questions  of  fact  and the  reasons given by  the court below in support of its order of acquittal in its arriving at  a conclusion on those  facts,  but should  also  express  those  reasons  in  its judgment, which lead it to hold that the acquittal was not justified.”

28

36. Again, in  M.G. Agarwal v.  State of Maharashtra (1963) 2

SCR 405, the point was raised before a Constitution Bench of

this Court. Taking note of earlier decisions, it was observed as

follows:

“17. In some of the earlier decisions of this Court, however,  in  emphasising  the  importance  of adopting  a  cautious  approach  in  dealing  with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, ‘the findings of the trial court  which  had  the  advantage  of  seeing  the witnesses  and  hearing  their  evidence  can  be reversed only for very substantial and compelling reasons’: vide  Surajpal Singh v.  State (1952 SCR 193). Similarly in  Ajmer Singh v.  State of Punjab (1953  SCR  418), it  was  observed  that  the interference  of  the  High  Court  in  an  appeal against the order of acquittal would be justified only if there are ‘very substantial and compelling reasons to do so’. In some other decisions, it has been  stated  that  an  order  of  acquittal  can  be reversed  only  for  ‘good  and  sufficiently  cogent reasons’  or  for  ‘strong reasons’.  In  appreciating the  effect  of  these  observations,  it  must  be remembered  that  these  observations  were  not intended  to  lay  down  a  rigid  or  inflexible  rule which  should  govern  the  decision  of  the  High Court  in  appeals  against  acquittals.  They  were not  intended,  and  should  not  be  read  to  have intended to introduce an additional condition in clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasize is that the approach of the High Court in dealing with  an  appeal  against  acquittal  ought  to  be

29

cautious  because  as  Lord  Russell  observed  in Sheo  Swarup the  presumption  of  innocence  in favour of the accused ‘is not certainly weakened by  the  fact  that  he  has  been  acquitted  at  his trial’.  Therefore,  the  test  suggested  by  the expression ‘substantial  and compelling reasons’ should not be construed as a formula which has to  be  rigidly  applied  in  every  case.  That  is  the effect  of  the  recent  decisions  of  this  Court,  for instance,  in  Sanwat Singh v.  State of  Rajasthan and Harbans Singh v. State of Punjab (1962 Supp 1 SCR 104) and so, it is not necessary that before reversing a judgment of  acquittal, the High Court must  necessarily  characterise  the  findings recorded therein as perverse.”  

(emphasis supplied)

37. Yet  in  another  leading  decision  in  Shivaji  Sahabrao

Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court

held that in India, there is no jurisdictional limitation on the

powers of appellate court. “In law there are no fetters on the

plenary  power  of  the  appellate  court  to  review  the  whole

evidence  on  which  the  order  of  acquittal  is  founded  and,

indeed, it has a duty to scrutinise the probative material de

novo,  informed,  however,  by  the  weighty  thought  that  the

rebuttable  innocence  attributed to the accused having been

converted  into  an  acquittal  the  homage  our  jurisprudence

30

owes to individual liberty constrains the higher court not to

upset  the  holding  without  very  convincing  reasons  and

comprehensive consideration.”  

38. Putting  emphasis  on  balance  between  importance  of

individual  liberty  and  evil  of  acquitting  guilty  persons,  this

Court observed as follows:

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

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light-heartedly,  as  a  learned  author  (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical  disregard  of  the  law,  and  this  in  turn leads  to  a  public  demand  for  harsher  legal presumptions  against  indicted  ‘persons’  and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may  lead  to  a  ferocious  penal  law,  eventually eroding  the  judicial  protection  of  the  guiltless. For  all  these  reasons  it  is  true  to  say,  with Viscount  Simon,  that  ‘a  miscarriage  of  justice may arise from the acquittal of the guilty no less than from the  conviction  of  the  innocent....’  In short,  our  jurisprudential  enthusiasm  for presumed  innocence  must  be  moderated  by  the pragmatic need to make criminal justice potent and realistic.  A  balance  has  to  be  struck  between chasing chance possibilities as good enough to set the  delinquent  free  and  chopping  the  logic  of preponderant  probability  to  punish  marginal innocents.”

(emphasis supplied)

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

Court was considering the power of the High Court against an

order of acquittal under Section 378 of the present Code. After

considering the relevant decisions on the point it was stated

as follows:

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“9.  The  principles  are  now well  settled.  At  one time  it  was  thought  that  an  order  of  acquittal could be set aside for ‘substantial and compelling reasons’  only  and  courts  used  to  launch  on  a search  to  discover  those  ‘substantial  and compelling  reasons’.  However,  the  ‘formulae’  of ‘substantial  and compelling reasons’,  ‘good and sufficiently cogent reasons’ and ‘strong reasons’ and the search for  them were  abandoned  as  a result  of  the  pronouncement  of  this  Court  in Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120.  In  Sanwat  Singh  case this  Court  harked back  to  the  principles  enunciated  by  the  Privy Council  in  Sheo  Swarup v.  R.  Emperor and reaffirmed those principles. After Sanwat Singh v. State of  Rajasthan this  Court  has  consistently recognised  the  right  of  the  appellate  court  to review the entire evidence and to come to its own conclusion  bearing  in  mind  the  considerations mentioned by the Privy Council in  Sheo Swarup case.  Occasionally  phrases  like  ‘manifestly illegal’,  ‘grossly  unjust’,  have  been  used  to describe  the  orders  of  acquittal  which  warrant interference.  But,  such  expressions  have  been used  more  as  flourishes  of  language,  to emphasise the reluctance of the appellate court to  interfere  with  an  order  of  acquittal  than  to curtail the power of the appellate court to review the  entire  evidence  and  to  come  to  its  own conclusion. In some cases (Ramaphupala Reddy v.  State of  A.P.,  (AIR 1971 SC 460)  Bhim Singh Rup Singh v.  State of Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in  Sanwat Singh  case may  be  added  the further  principle  that  ‘if  two  reasonable conclusions can be reached on the basis of the evidence  on  record,  the  appellate  court  should

33

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

          (emphasis supplied)

40. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC

225, this Court said:  

“While sitting in judgment over an acquittal the appellate  court  is  first  required  to  seek  an answer to the question whether the findings of the  trial  court  are  palpably  wrong,  manifestly erroneous  or  demonstrably  unsustainable.  If the appellate court answers the above question in the negative the order of acquittal is not to be

34

disturbed.  Conversely,  if  the  appellate  court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions.”

41. In Allarakha K. Mansuri v.  State of Gujarat (2002) 3 SCC

57, referring to earlier decisions, the Court stated:  

“7.  The  paramount  consideration  of  the  court should  be  to  avoid  miscarriage  of  justice.  A miscarriage of justice which may arise from the acquittal  of  guilty  is  no  less  than  from  the conviction of  an innocent.  In  a case  where  the trial  court  has  taken  a  view  based  upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes  of  ascertaining as to whether  the accused  has  committed  any  offence  or  not. Probable view taken by the trial court which may not  be  disturbed  in  the  appeal  is  such  a  view which  is  based  upon  legal  and  admissible evidence.  Only  because  the  accused  has  been acquitted by the trial  court,  cannot  be  made  a basis  to  urge  that  the  High  Court  under  all circumstances  should  not  disturb  such  a finding.”   

35

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

trial court acquitted the accused but the High Court convicted

them.  Negativing  the  contention  of  the  appellants  that  the

High Court could not have disturbed the findings of fact of the

trial  court  even  if  that  view  was  not  correct,  this  Court

observed:  

 “7. We do not agree with the submissions of the learned  counsel  for  the  appellants  that  under Section 378 of  the  Code  of  Criminal  Procedure the High Court could not disturb the finding of facts of the trial court  even if  it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal  is  that  the  Court  has  full  powers  to review  the  evidence  upon  which  an  order  of acquittal  is  based  and  generally  it  will  not interfere with the order of acquittal because  by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in  the  case,  one  pointing  to  the  guilt  of  the accused and the other to his innocence, the view which  is  favourable  to  the  accused  should  be adopted. Such is not a jurisdiction limitation on the appellate court but judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is  avoided.  A  miscarriage  of  justice  which may

36

arise from the acquittal  of  the guilty is no less than  from  the  conviction  of  an  innocent.  In  a case  where  the  trial  court  has  taken  a  view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in  acquittal  appeal  for  the  purposes  of ascertaining  as  to  whether  all  or  any  of  the accused has committed any offence or not”.  

43. In  Harijana Thirupala v.  Public Prosecutor, High Court of

A.P. (2002) 6 SCC 470, this Court said:  

“12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence  to  reach  its  own  independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of  an  order  of  acquittal  presumption  of innocence  in  favour  of  the  accused  gets reinforced  and  strengthened.  The  High  Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction;  a  duty  is  cast  on  the  High  Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise  the judgment  will  suffer  from serious infirmity.”

37

44. In  Ramanand Yadav v.  Prabhu Nath Jha (2003) 12 SCC

606, this Court observed:  

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

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

Court stated:  

“8.  While  deciding  an  appeal  against  acquittal, the power of the appellate court is no less than

38

the  power  exercised  while  hearing  appeals against conviction. In both types of appeals, the power  exists  to  review  the  entire  evidence. However,  one  significant  difference  is  that  an order of acquittal will not be interfered with, by an  appellate  court,  where  the  judgment  of  the trial  court  is  based  on  evidence  and  the  view taken  is  reasonable  and  plausible.  It  will  not reverse  the  decision  of  the  trial  court  merely because  a  different  view  is  possible.  The appellate court will also bear in mind that there is  a presumption of  innocence  in favour of  the accused  and the  accused  is  entitled  to  get  the benefit  of  any  doubt.  Further  if  it  decides  to interfere,  it  should  assign  reasons  for  differing with the decision of the trial court.”

                         (emphasis supplied)

46. From the  above  decisions,  in  Chandrappa and  Ors.  v.

State of  Karnataka (2007 (4)  SCC 415), the following general

principles  regarding  powers  of  the  appellate  court  while

dealing  with  an  appeal  against  an  order  of  acquittal  were

culled out:

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

reappreciate  and reconsider the evidence upon which the

order of acquittal is founded.

39

(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

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to be innocent unless he is proved guilty by a competent

court  of  law.  Secondly,  the  accused  having  secured  his

acquittal,  the  presumption  of  his  innocence  is  further

reinforced, reaffirmed and strengthened by the trial court.

(5) If  two  reasonable  conclusions  are  possible  on  the

basis of the evidence on record, the appellate court should

not  disturb  the  finding  of  acquittal  recorded  by  the  trial

court.

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

convicted  of  an  offence  which  is  not  established  by  the

evidential standard of proof beyond reasonable doubt. Though

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

absolute  standard.  What  degree  of  probability  amounts  to

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

interdependence of evidence and the confirmation of one piece

of  evidence  by  another,  a  learned  author  says  [see  “The

Mathematics  of  Proof  II”:  Glanville  Williams,  Criminal  Law

Review, 1979, by Sweet and Maxwell, p.340 (342)]:

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

48. Doubts would be called reasonable if they are free from a

zest for abstract speculation. Law cannot afford any favourite

other than truth. To constitute reasonable doubt, it must be

free from an overemotional response. Doubts must be actual

and substantial doubts as to the guilt of the accused persons

arising from the evidence, or from the lack of it, as opposed to

mere  vague  apprehensions.  A  reasonable  doubt  is  not  an

imaginary, trivial or a merely possible doubt, but a fair doubt

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based upon reason and common sense. It  must grow out of

the evidence in the case.

49. The concepts of probability, and the degrees of it, cannot

obviously be expressed in terms of units to be mathematically

enumerated  as to  how many of  such units  constitute  proof

beyond reasonable doubt. There is an unmistakable subjective

element in the evaluation of the degrees of probability and the

quantum  of  proof.  Forensic  probability  must,  in  the  last

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

the trained intuitions of the Judge. While the protection given

by the criminal process to the accused persons is not to be

eroded,  at  the  same  time,  uninformed  legitimization  of

trivialities would make a mockery of administration of criminal

justice.  This  position  was  illuminatingly  stated  by

Venkatachaliah, J. (as His Lordship then was) in State of U.P.

v. Krishna Gopal (1988 (4) SCC 302).

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50. The above position was highlighted in Krishnan and Anr.

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

in Criminal Appeal No. 572 of 2001 entitled Valson & Anr. v.

State of Kerala (decided on 01st August, 2008).

51. When the factual position is analysed in the background

of the conclusions arrived at by the High Court, the inevitable

conclusion is that the High Court’s judgment is correct.  The

appeal  is dismissed.  The appellants who are directed to be

released on bail by order dated 10.12.2001, shall surrender to

custody forthwith to serve the remainder of sentence.

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

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

New Delhi: September 30, 2008

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