REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1218  OF 2006

Perla Somasekhara Reddy and Ors.   ....Appellants

Versus

State of A.P. Rep. by Public Prosecutor ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

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

Andhra Pradesh High Court which by the impugned judgment allowed the  

appeal filed by the State and held A-1 to A-4, A-6, A-7, A-9 to A-13 guilty  

for  various offences.   A-3 was found guilty  of  offence punishable  under  

Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). A-1, A-2,  

A-4, A-6, A-7, A-9 to A-13 were found guilty of offence punishable under  

Section 302 read with Section 149 IPC and A-1 to  A-4, A-6, A-7, A-9 to A-

1

13 were also found guilty of offence punishable under Section 307 IPC as  

also under Sections 3 and 5 of Explosive Substances Act, 1908  (in short the  

‘Explosive Act’). They were acquitted of the rest of the charges except under  

Section 120-B and Section 148 IPC.  

2. Prosecution case during trial is essentially as follows:I

A-1, A-2, A-5 and A-19 are brothers and A-19 is the Chairman of the  

Agricultural Market Yard, Pulivendula. The other accused are followers of  

A-19 and supporters of Telugu Desam Party. The deceased Y.S. Raja Reddy  

was an Ex-Sarpanch of Pulivendula. PW-1 is the Driver, PW-2 is the Private  

Body Guard., PWs. 3 and 4 are Carpenters, PWs.5 and 6 are residents of  

Gondipalli  Village of Vemula Mandall  and PWs.7 and 8 are residents of  

Vemula village. In January, 1996, deceased and his followers attacked A-19  

and caused grievous injuries to him. Since then A-19 and his associates had  

decided to do away with the deceased.

On 23-05-1998 the deceased along with PWs.1 to 4 went to his Estate  

situated at Gandi village in a car. When he was returning to Pulivendula and  

when the car reached Vemula village, they found stagnation of water on the  

2

road near MDO Office. PW-1 slowed down the car to cross the water. At  

that moment A-1 to A-13, A-16, and A-17 surrounded the car. When A-1  

exhorted,  the  other  accused  uttered  "Kill  Raja  Reddy" and A-2 hurled a  

bomb on the deceased and the front glass of the car was broken. A-3 to A-

13, A-16 and A-17 also hurled bombs on the car. The bomb hurled by A-3  

hit  the  head  of  the  deceased  and  exploded  causing  blasting  of  his  skull  

resulting in his instantaneous death. The bombs hurled by the other accused  

hit the deceased and PWs. 1 to 4.  They suffered splinter injuries all over the  

body and the car was also badly damaged. Due to explosion of bombs, A-5  

sustained splinter injuries and fell down unconscious.  A-5 was shifted to the  

house of his uncle by the other accused and PWs 1 to 4 were shifted to  

Pulivendula  hospital  for  treatment.  PW-25,  the  Head  Constable  of  

Pulivendula Police Station, went to the hospital and recorded the statement  

of PW-1 at 4.00 PM and forwarded the same to Vemula Police Station on  

the point of jurisdiction.  On the basis of the said complaint, a crime was  

registered at 5.45 PM and copies of FIR were sent to all concerned. PW-30,  

the Inspector of Police, took up the investigation, held inquest over the dead  

body of the deceased from 9.00 PM to 12.00 midnight and got conducted  

postmortem examination over the dead body of the deceased. Immediately  

after inquest PW-32 took up further investigation and arrested the accused  

3

on various dates. On surrender of A-15, a judicial confession was recorded  

under Section 164 of the Code of Criminal Procedure, 1973 (in short the  

‘Code’)  by PW-17, the then III Additional Junior Civil Judge, Cuddapah,  

and  the  case  property  was  sent  to  Forensic  Science  Laboratory  for  

examination and after  getting the  report  and obtaining sanction  from the  

Collector, a charge  sheet was filed against all the accused. Charges were  

framed against the accused for the offences under Sections 120-B 148, 302,  

302/149,  307,  307/149,  435,  435/149  IPC  and  Section  3,  5,  and  6  of  

Explosive  Act.  All  the accused denied the charges  and claimed for  trial.  

Trial Court acquitted the accused persons.  An appeal was preferred by State  

which as noted above was partially allowed.   

3. In support of the appeal, learned counsel for the appellants submitted  

that the view taken by the High Court was a possible view and the reversal  

was done by taking another view. The prosecution, it is to be noted, gave up  

its case so far as A-15, A-18 and A-19 are concerned. A-5 died on the date  

of the occurrence while A-8 died during the pendency of the trial.  In other  

words, there are 13 accused persons whose case remains to be considered.  

The High Court acquitted A-16 and A-17 from all the charges  and convicted  

the  rest of the accused  as noted above.

4

4. There were four injured eye witnesses PWs 1, 2, 3 and 4. A complaint  

was given by PW-1 the driver,  wherein the names of A-1 to A-13, A-14 and  

A-19 were mentioned.  The same was recorded by PW-25 in the presence of  

PW-22 the doctor in the Government Hospital. Exh.P-4 is the inquest report  

which was witnessed by PWs 2 to 4.  PW-1 was the driver of the deceased  

working for nearly four years and PW-2 was the Personal Assistant of the  

deceased.   PWs  3  and  4  were  carpenters  working  near  the  place  of  

occurrence. The eye witnesses apart from PWs 1 to 4 were PWs 5 and 6 of  

Gondipalli village and PWs 7 and 8 of Vemula village.   Learned counsel for  

the appellants submitted that the view taken by the trial Court was a possible  

view and the High Court should not have interfered with the finding.  There  

was considerable delay in lodging the FIR. The accused belong to different  

villages and it could not be possible for all of them to assemble at one place  

with  common intention  and to  attack as  they  did  not  have any common  

motive or prior conspiracy.  The so called eye witnesses belong to different  

villages  and  their  version  would  not  be  truthful  and  reliable.  The  

investigation in the case was tainted and there were several lapses in the  

process of conducting the investigation.  PWs 1 to 4 were members of   the  

deceased’s  group  and,  therefore,  their  evidence  could  not  have  been  

5

believed.  The doctor helped the prosecution as he did not conduct the post  

mortem examination or the internal examination of the dead body. The dead  

body was shifted and the injured witnesses  also unauthorisedly  went  out  

from the scene of offence and there was no reason given.  

5. Learned counsel for the respondent-State on the other hand submitted  

that  the  trial  Court’s  approach  was  erroneous  and  its  conclusions  were  

perverse. The High Court was therefore justified in setting aside the acquittal  

and directed conviction.  

6. In view of rival submissions of the parties, we think it proper to consider  

and clarify the legal  position first.  Chapter  XXIX (Sections 372-394) of the  

Code  of  Criminal  Procedure,  1973  (hereinafter  referred  to  as  “the  present  

Code”) deals with appeals. Section 372 expressly declares that no appeal shall  

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

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

filing of appeals in certain cases. Section 374 allows appeals from convictions.  

Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no  

appeal is maintainable in petty cases (Section 376). Section 377 permits appeals  

by the State for enhancement of sentence. Section 378 confers power on the  

6

State to present an appeal to the High Court from an order of acquittal. The said  

section is material and may be quoted in extenso:

“378.  Appeal in case of acquittal.—(1) Save as otherwise  provided in sub-section (2) and subject to the provisions of  sub-sections (3) and (5), the State Government may, in any  case, direct the Public Prosecutor to present an appeal to the  High Court from an original or appellate order of acquittal  passed by any court other than a High Court, or an order of  acquittal passed by the Court of Session in revision. (2)  If  such an order  of  acquittal  is  passed in any case in  which the offence has been investigated by the Delhi Special  Police  Establishment  constituted  under  the  Delhi  Special  Police  Establishment  Act,  1946  (25  of  1946),  or  by  any  other  agency  empowered  to  make  investigation  into  an  offence  under  any  Central  Act  other  than  this  Code,  the  Central Government may also direct the Public Prosecutor to  present an appeal,  subject to the provisions of sub-section  (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub-section (2) shall  be entertained except with the leave of the High Court. (4)  If  such  an  order  of  acquittal  is  passed  in  any  case  instituted  upon  complaint  and  the  High  Court,  on  an  application  made  to  it  by  the  complainant  in  this  behalf,  grants special leave to appeal from the order of acquittal, the  complainant may present such an appeal to the High Court. (5)  No  application  under  sub-section  (4)  for  the  grant  of  special leave to appeal from an order of acquittal shall be  entertained by the High Court after the expiry of six months,  where the complainant is a public servant, and sixty days in  every other case, computed from the date of that order of  acquittal. (6) If, in any case, the application under sub-section (4) for  the grant of special leave to appeal from an order of acquittal  is  refused,  no appeal from that order of acquittal  shall  lie  under sub-section (1) or under sub-section (2).”

7

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

sections lay down procedure to be followed by appellate courts.

8. 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.

9. Bare reading of Section 378 of the present Code (appeal in case of  

acquittal)  quoted  above,  makes  it  clear  that  no  restrictions  have  been  

imposed by the legislature on the powers of the appellate court in dealing  

with appeals against acquittal. When such an appeal is filed, the High Court  

has full power to re-appreciate, review and reconsider the evidence at large,  

the material on which the order of acquittal is founded and to reach its own  

8

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.

10. 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.

11. Though the above principles are well established, a different note was  

struck in several decisions by various High Courts and even by this Court. It  

is, therefore, appropriate if we consider some of the leading decisions on the  

point.

12. 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  

9

Court from an order of acquittal under Section 417 of the old Code (similar  

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

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

from an order of acquittal, it was not open to the appellate court to interfere  

with the findings of fact recorded by the trial Judge unless such findings  

could not have been reached by him had there not been some perversity or  

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

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

appeal.  It  accordingly  reviewed  all  the  evidence  in  the  case  and  having  

formed an opinion of its weight and reliability different from that of the trial  

Judge,  recorded  an order  of  conviction.  A petition  was presented  to  His  

Majesty in Council for 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  

10

the High Court in exercise of powers as an Appellate Tribunal. The Code  

also made no distinction as regards powers of the High Court in dealing with  

an appeal against acquittal and an appeal against conviction. Though several  

authorities were cited revealing different views by the High Courts dealing  

with an appeal from an order of acquittal,  the Committee did not think it  

proper to discuss all the cases.

 13. 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.”

14. 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.”

11

15. 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)

16. 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.

17. 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  

12

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.

18. 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)   

19. 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  

13

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.

 20. In  Ajmer Singh v.  State of Punjab (1953 SCR 418) the accused was  

acquitted by the trial court but was convicted by the High Court in an appeal  

against acquittal filed by the State. The aggrieved accused approached this  

Court. It was contended by him that there were “no compelling reasons” for  

setting aside the order of acquittal and due and proper weight had not been  

given by the  High Court  to  the  opinion of  the  trial  court  as  regards  the  

credibility of witnesses seen and examined. It was also commented that the  

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

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

explain the circumstances appearing in evidence against him and he cannot  

take shelter behind the presumption of innocence and cannot state that the  

law entitles him to keep his lips sealed”.

21. 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  

14

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)   

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

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

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

15

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)   

23. 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)

24. 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  

16

scope  of  the  words  “substantial  and compelling  reasons”  used  in  certain  

decisions. It was observed inter-alia as follows:

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

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

17

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

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

of earlier decisions, it was observed as follows:

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

18

not necessary that before reversing a judgment of acquittal,  the  High Court  must  necessarily  characterise  the  findings  recorded therein as perverse.”  

(emphasis supplied)   

26. Yet in another leading decision in Shivaji Sahabrao Bobade v. State of  

Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no  

jurisdictional limitation on the powers of appellate court. “In law there are  

no fetters on the plenary power of the appellate court to review the whole  

evidence on which the order of acquittal is founded and, indeed, it has a duty  

to  scrutinise  the  probative  material  de  novo,  informed,  however,  by  the  

weighty  thought  that  the  rebuttable  innocence  attributed  to  the  accused  

having been converted into an acquittal the homage our jurisprudence owes  

to  individual  liberty  constrains  the  higher  court  not  to  upset  the  holding  

without very convincing reasons and comprehensive consideration.”  

 27. 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  

19

victim and the community, demand especial emphasis in the  contemporary context of escalating crime and escape. The  judicial  instrument  has  a  public  accountability.  The  cherished  principles  or  golden  thread  of  proof  beyond  reasonable doubt which runs thro’ the web of our law should  not be stretched morbidly to embrace every hunch, hesitancy  and degree of doubt.  The excessive solicitude reflected in  the  attitude  that  a  thousand  guilty  men  may  go  but  one  innocent  martyr  shall  not  suffer  is  a  false  dilemma.  Only  reasonable  doubts  belong  to  the  accused.  Otherwise  any  practical  system of  justice  will  then  breakdown  and  lose  credibility  with  the  community.  The  evil  of  acquitting  a  guilty person light-heartedly, as a learned author (Glanville  Williams  in  Proof  of  Guilt)  has  saliently  observed,  goes  much beyond the simple fact that just one guilty person has  gone  unpunished.  If  unmerited  acquittals  become general,  they tend to lead to a cynical disregard of the law, and this in  turn leads to a public demand for harsher legal presumptions  against  indicted  ‘persons’  and more severe punishment of  those who are found guilty. Thus, too frequent acquittals of  the  guilty  may  lead  to  a  ferocious  penal  law,  eventually  eroding the judicial protection of the guiltless. For all these  reasons  it  is  true  to  say,  with  Viscount  Simon,  that  ‘a  miscarriage  of  justice  may arise  from the acquittal  of  the  guilty no less than from the conviction of the innocent....’ In  short,  our  jurisprudential  enthusiasm  for  presumed  innocence  must  be  moderated  by  the  pragmatic  need  to  make criminal justice potent and realistic. A balance has to  be  struck  between  chasing  chance  possibilities  as  good  enough to set the delinquent free and chopping the logic of  preponderant probability to punish marginal innocents.”

(emphasis supplied)

28. 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  

20

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

the point it was stated as follows:

“9. The principles are now well settled. At one time it was  thought  that  an  order  of  acquittal  could  be  set  aside  for  ‘substantial and compelling reasons’ only and courts used to  launch  on  a  search  to  discover  those  ‘substantial  and  compelling  reasons’.  However,  the  ‘formulae’  of  ‘substantial and compelling reasons’, ‘good and sufficiently  cogent reasons’ and ‘strong reasons’ and the search for them  were abandoned as a  result  of  the  pronouncement  of  this  Court in  Sanwat Singh v.  State of Rajasthan (1961) 3 SCR  120.  In  Sanwat  Singh case this  Court  harked back to  the  principles enunciated by the Privy Council in Sheo Swarup  v. R. Emperor and reaffirmed those principles. After Sanwat  Singh v.  State  of  Rajasthan this  Court  has  consistently  recognised  the  right  of  the  appellate  court  to  review  the  entire evidence and to come to its own conclusion bearing in  mind the considerations mentioned by the Privy Council in  Sheo  Swarup  case.  Occasionally  phrases  like  ‘manifestly  illegal’,  ‘grossly  unjust’,  have  been  used  to  describe  the  orders  of  acquittal  which  warrant  interference.  But,  such  expressions have been used more as flourishes of language,  to emphasise the reluctance of the appellate court to interfere  with an order of acquittal than to curtail  the power of the  appellate court to review the entire evidence and to come to  its own conclusion. In some cases (Ramaphupala Reddy v.  State of A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh     v.  State of Maharashtra (AIR 1974 SC 286), it has been said  that to the principles laid down in Sanwat Singh case may be  added  the  further  principle  that  ‘if  two  reasonable  conclusions can be reached on the basis of the evidence on  record, the appellate court should not disturb the finding of  the trial  court’.  This,  of course,  is  not a new principle.  It  stems  out  of  the  fundamental  principle  of  our  criminal  jurisprudence that the accused is entitled to the benefit  of  any reasonable doubt. If two reasonably probable and evenly  

21

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)

 29. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this  

Court said:  

“While sitting in judgment over an acquittal the appellate  court  is  first  required to seek an answer to the question  whether the findings of the trial court are palpably wrong,  manifestly erroneous or demonstrably unsustainable. If the  appellate court answers the above question in the negative  the order of acquittal is not to be disturbed. Conversely, if  the appellate court holds, for reasons to be recorded, that  the order of acquittal cannot at all be sustained in view of  any  of  the  above  infirmities  it  can  then-and  then  only- reappraise the evidence to arrive at its own conclusions.”

 30. In  Allarakha  K.  Mansuri v.  State  of  Gujarat (2002)  3  SCC  57,  

referring to earlier decisions, the Court stated:  

22

“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.”   

31. 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  

23

reinforced. The golden thread which runs through the web of  administration of justice in criminal case is that if two views  are  possible  on  the  evidence  adduced  in  the  case,  one  pointing  to  the  guilt  of  the  accused  and  the  other  to  his  innocence,  the  view  which  is  favourable  to  the  accused  should be adopted. Such is not a jurisdiction limitation on  the  appellate  court  but  judge-made  guidelines  for  circumspection. The paramount consideration of the court is  to  ensure  that  miscarriage  of  justice  is  avoided.  A  miscarriage of justice which may arise from the acquittal of  the guilty is no less than from the conviction of an innocent.  In a case where the trial court has taken a view ignoring the  admissible evidence, a duty is cast upon the High Court to  reappreciate  the  evidence  in  acquittal  appeal  for  the  purposes  of  ascertaining  as  to  whether  all  or  any  of  the  accused has committed any offence or not”.  

32. 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.”

24

33. 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”.  

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

“8. While deciding an appeal against acquittal, the power of  the appellate court is no less than the power exercised while  hearing appeals against conviction. In both types of appeals,  the power exists to review the entire evidence. However, one  significant difference is that an order of acquittal will not be  interfered with, by an appellate court, where the judgment of  the trial  court is based on evidence and the view taken is  reasonable and plausible. It will not reverse the decision of  the trial court merely because a different view is possible.  The appellate  court  will  also bear  in  mind that  there is  a  

25

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)

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

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

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

of acquittal were culled out:

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

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

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

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

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

questions of fact and of law.

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

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

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

curtail  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  

26

with  acquittal  than  to  curtail  the  power  of  the  court  to  review  the  

evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case  

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

the presumption of innocence is available to him under the fundamental  

principle of criminal jurisprudence that every person shall be presumed to  

be  innocent  unless  he  is  proved  guilty  by  a  competent  court  of  law.  

Secondly, the accused having secured his acquittal, the presumption of  

his innocence is further reinforced, reaffirmed and strengthened by the  

trial court.

(5) If  two  reasonable  conclusions  are  possible  on  the  basis  of  the  

evidence on record, the appellate court should not disturb the finding of  

acquittal recorded by the trial court.

36. 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  

27

by  another,  a  learned  author  says  [see  “The  Mathematics  of  Proof  II”:  

Glanville Williams,  Criminal Law Review, 1979, by Sweet and Maxwell,  

p.340 (342)]:

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

 37. 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  based  upon reason and common  

sense. It must grow out of the evidence in the case.

28

38. 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).

39. The above position was highlighted in  Krishnan and Anr. v.  State  

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

40. It is to be noted that  in the instant case the incident took place in front  

of MDO office at Vemula around 1.40 p.m. The finding of the trial Court is  

29

to the effect that murder of deceased took place at 1.40 p.m. at Vemula  and  

the same fact is not disputed by the accused persons.  Between 2.40 and 2.45  

p.m. the deceased and the injured were taken to the Government Hospital at  

Pullvendula by PW-9 which is also 12 KM from the place of occurrence.  

The medical intimation is Ext.P-25 which was sent to the Station Incharge  

at 2.45 p.m. PW-1 the de facto complainant  was examined by PW-22 at  

around 3.30 p.m.  The Station Incharge  Pullivendula received information  

around that time. At 4.00 p.m. the statement of the de facto complainant  

(PW-1) was recorded by the Head Constable in the presence of PW-22.   The  

statement of PW-1 alongwith Ext.P-25 was sent to Vemula Police Station on  

the point of jurisdiction and the same was registered as a Crime No.22 of  

1998 at Vemula P.S. by PW-21.  The inquest was held at around 9 to 12  

p.m. and copy of FIR was received by the Elaqa Magistrate. It is to be noted  

that  since  the  Magistrate  at  Pulivendula  was  on  leave  and  Magistrate  at  

another place was not the inchage, it was sent to another Court which is at a  

distance of 60 K.M. as is evident from the evidence of PW-21. Therefore,  

there is no delay in sending the FIR to the Magistrate. The allegation that the  

FIR was ante timed is without any foundation.   

30

41. The impugned judgment cannot be said to be suffering from infirmity  

to warrant interference. The appeal fails and is dismissed.  

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………….……J. (ASOK KUMAR GANGULY)

New Delhi: May 06, 2009

31