REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 598-599 of 2002

State of Goa ...Appellant

Versus

 Pandurang Mohite ...Respondent

  J U D G M E N T    

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of

Bombay High Court  at  Goa directing acquittal  of the respondent.     The

accused faced trial for offences punishable under Section 302, 392 and 201

of the Indian Penal Code, 1860 (in short the ‘IPC’).  The learned Additional

Sessions  Judge,  Mapusa  found  the  accused  guilty  of  offence  punishable

under  Sections  302,  392  and  201  IPC  and  convicted  him  to  undergo

imprisonment for life, seven years and one years with different fines with

default stipulations.

2. In appeals the High Court found the evidence to be inadequate and

directed acquittal.

3. Prosecution version in a nutshell is as follows:

Chandrakant  Mahadeshwar  and  his  son  Shyam  Mahadeshwar

(hereinafter referred to as the ‘deceased’) had gone for the annual fair to sell

sweets  at  the  village  Zarme.   On  1.3.1998,  in  the  morning  they  were

returning home.  At about 7.30 A.M. when they reached at village Valpoi,

Shyam told his father that he would stay behind and father should proceed

ahead  to  his  house  and  that  he  would  follow  him after  some time.  So,

Chandrakant left behind Shyam at Valpoi and went to his Village at Thana.

Till  1.00  p.m.  on  that  day  Shyam  did  not  return  home.  So  he  started

searching for Shyam. Ultimately, on 2.3.1998, at about 8.30 a.m. he lodged

report at the Valpoi Police Station that Shyam was missing. On the basis of

that report, the missing case No.6/98 was registered at the police station.

On  2.3.1998  itself  when  Chandrakant  was  at  Valpoi,  Ramjatan

Vishwakarma (PW3) told him that he had taken Shyam and the accused to

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Hedode Bridge on the previous day at about 7.15 a.m, and he had left them

there. Ramjatan then took Chandrakant to the house of the accused, but the

accused  was  not  there.  The  matter  was  also  reported  to  the  police.  The

police visited the house of the accused on 2.3.98 at about 11 a.m., but the

accused was not there.

On 2.3.1998, at about noon time, when Chandrakant returned home,

he saw that the accused was at his home and accused told him that Shyam

would be returning home by evening. Thereafter, the police came there. The

accused was taken to the police station. There was one bicycle. It was seized

by the police.

On 2.3.1998 itself, the brother of the accused i.e. Baburao as well as

brother-in-law of the accused i.e. Jaidev Paryekar were also called at  the

police station and inquiries were made with them. A shirt worn by Baburao

and  a  pant  worn  by  Jaidev  Paryekar  were  seized  by  the  police  under  a

Panchanama.

The accused was interrogated and he made a statement that he would

point out the place where dead body of Shyam was lying. Then the police,

panchas and the accused went by police jeep to Hedode Bridge. From there,

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the  accused  took  them  in  a  jungle  at  distance  of  about  one  and  half

kilometre and pointed out to the dead body of the deceased. Since it was

night time, Inspector Dessai who had taken the accused and the panchas to

that  place,  could  not  prepare  the  panchanama  of  the  dead  body  and

therefore,  he kept  some policemen to  keep watch  on  the dead body and

returned to the police station.

On  returning  to  the  police  station,  inspector  Dessai  himself  lodged

F.I.R. at about 1.30 a.m. on 3.3.1998. He gave all the details as to how the

dead body was recovered and alleged that the accused had committed the

offence of murder of Shyam and had taken away cash and other valuables

from the body of the deceased. So, crime was registered for the offences

punishable  under  Sections  302,  392  and  201  of  I.P.C.  It  was  crime

No.18/98.

Inspector Dessai himself took up the investigation. In the morning of

3.3.1998, Inspector Dessai again went to the place in the jungle where dead

body was lying. He prepared panchanama of the place of the offence and

from there he recovered a pair of chapples and a knife. He also prepared

inquest  panchanama  of  the  dead  body.  He  found  that  there  were  some

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injuries on the person of the deceased and there were also burn injuries. He

sent the dead body for post mortem examination to Goa Medical College at

Bambolim.

Dr. Silvano Dias Sapeco conducted post mortem examination on the

dead body and gave his  opinion that  the cause of death was due to post

mortem burns.

4. On  completion  of  investigation  charge  sheet  was  filed  and  the

accused  faced  trial.   There  was  no  eye  witness  to  the  occurrence.

Prosecution  version  rested  on  circumstantial  evidence.   The  prosecution

rested its version on the last seen theory contending that the accused and the

deceased were last seen together.  For that purpose it relied on the evidence

of  PWs  3  &  8.   As  noted  above  the  trial  court  placed  reliance  on  the

evidence of PWs 3 & 8 and directed conviction which in appeal was set

aside by the High Court.

5. Learned counsel for the appellant-State submitted that the High Court

should not have discarded the evidence of PWs 3 & 8.  According to PW 3

he  had  carried  both  the  accused  and  the  deceased  on  his  motor  cycle

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between 7 to 7.15 AM. Thereafter the accused was seen alone between 9.15

to 9.30 AM.  PW 8 saw the accused going near the place of occurrence

between 9 AM to 9.30 AM and had carried him on his motor cycle. This,

according to learned counsel for the appellant, was sufficient to fasten the

guilt on the accused.

6. Learned counsel for the respondent on the other hand supported the

judgment  of  the  High  Court.   It  was  submitted  that  keeping  in  view

parameters relating to appeal against  judgment of acquittal, this appeal is

sans merit.  

7. It has been consistently laid down by this  Court that where a case

rests  squarely  on  circumstantial  evidence,  the  inference  of  guilt  can  be

justified only when all the incriminating facts and circumstances are found

to be incompatible with  the innocence of the accused or the guilt  of any

other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);

Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v.

State of  Karnataka  (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors.

(AIR 1985 SC 1224);  Balwinder Singh v.  State of Punjab (AIR 1987 SC

350);  Ashok Kumar Chatterjee v.  State of M.P. (AIR 1989 SC 1890). The

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circumstances  from which  an  inference  as  to  the  guilt  of  the  accused  is

drawn have to be proved beyond reasonable doubt and have to be shown to

be closely connected with the principal fact sought to be inferred from those

circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was

laid  down that  where  the  case  depends  upon the  conclusion  drawn from

circumstances the cumulative effect of the circumstances must be such as to

negative the innocence of the accused and bring the offences home beyond

any reasonable doubt.

8. We may also  make  a  reference  to  a  decision  of  this  Court  in  C.

Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has

been observed thus:

“In a case based on circumstantial evidence, the settled  law is  that  the  circumstances  from which the conclusion  of  guilt  is  drawn should  be  fully  proved and such circumstances must be conclusive in nature. Moreover,  all  the  circumstances  should  be  complete and  there  should  be  no  gap  left  in  the  chain  of evidence.  Further  the  proved  circumstances  must  be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”.

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9. In Padala Veera Reddy v. State of A.P. and Ors.  (AIR 1990 SC 79), it

was laid down that when a case rests upon circumstantial  evidence, such

evidence must satisfy the following tests:  

“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those  circumstances  should  be  of  a  definite tendency  unerringly  pointing  towards  guilt  of  the accused;

(3) the circumstances, taken cumulatively should form a  chain  so  complete  that  there  is  no  escape  from the conclusion  that  within all  human probability the crime was committed by the accused and none else; and     

(4) the  circumstantial  evidence  in  order  to  sustain conviction  must  be  complete  and  incapable  of explanation of any other hypothesis than that of the guilt of  the  accused  and  such  evidence  should  not  only  be consistent  with  the  guilt  of  the  accused  but  should  be inconsistent with his innocence.”

10. In  State of U.P. v.  Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it

was pointed out that great care must be taken in evaluating circumstantial

evidence  and  if  the  evidence  relied  on  is  reasonably  capable  of  two

inferences, the one in favour of the accused must be accepted.  It was also

pointed out that the circumstances relied upon must be found to have been

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fully established and the cumulative effect  of  all  the facts  so established

must be consistent only with the hypothesis of guilt.

11. Sir  Alfred  Wills  in  his  admirable  book  “Wills’  Circumstantial

Evidence”  (Chapter  VI)  lays  down  the  following  rules  specially  to  be

observed in the case of circumstantial evidence: (1) the facts alleged as the

basis of any legal inference must be clearly proved and beyond reasonable

doubt  connected  with  the factum probandum;  (2)  the burden  of  proof  is

always on the party who asserts the existence of any fact, which infers legal

accountability; (3) in all cases, whether of direct or circumstantial evidence

the best evidence must be adduced which the nature of the case admits; (4)

in  order  to  justify  the  inference  of  guilt,  the  inculpatory  facts  must  be

incompatible  with  the  innocence  of  the  accused  and  incapable  of

explanation, upon any other reasonable hypothesis than that of his guilt, (5)

if there be any reasonable doubt of the guilt of the accused, he is entitled as

of right to be acquitted”.

12. There  is  no  doubt  that  conviction  can  be  based  solely  on

circumstantial  evidence but it  should be tested by the touch-stone of law

relating to circumstantial evidence laid down by the this Court as far back as

in 1952.   

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13. In  Hanumant  Govind  Nargundkar  and  Anr. V.  State  of  Madhya

Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

“It  is  well  to  remember  that  in  cases  where  the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in  the first  instance be fully established and all  the facts  so established should be consistent  only with the hypothesis  of  the  guilt  of  the  accused.   Again,  the circumstances  should  be  of  a  conclusive  nature  and tendency and they should  be such as to  exclude  every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

14. A reference may be made to a later decision in  Sharad Birdhichand

Sarda v. State of Maharashtra, (AIR 1984 SC 1622).  Therein, while dealing

with  circumstantial  evidence,  it  has  been  held  that  onus  was  on  the

prosecution to prove that the chain is complete and the infirmity of lacuna in

prosecution  cannot  be  cured  by  false  defence  or  plea.   The  conditions

precedent in the words of this Court, before conviction could be based on

circumstantial evidence, must be fully established. They are:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.  The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to  say,  they  should  not  be  explainable  on  any other hypothesis except that the accused is guilty;

(3) the  circumstances  should  be  of  a  conclusive nature and tendency;

(4) they  should  exclude  every  possible  hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that  in all  human probability the act must  have been done by the accused.”      

15. These aspects  were highlighted  in  State  of  Rajasthan v.  Raja Ram

(2003 (8) SCC 180),  State of Haryana v. Jagbir Singh and Anr. (2003 (11)

SCC  261)  and  Kusuma  Ankama Rao  v  State  of  A.P.  (Criminal  Appeal

No.185/2005 disposed of on 7.7.2008)

16. So far as the last seen aspect is concerned it is necessary to take note

of two decisions of this court.  In State of U.P. v. Satish [2005 (3) SCC 114]

it was noted as follows:

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“22. The last seen theory comes into play where the time-gap between the point of time when the accused and  the  deceased  were  seen  last  alive  and  when  the deceased is  found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In  the  absence  of  any  other  positive  evidence  to conclude that the accused and the deceased were last seen  together,  it  would  be  hazardous  to  come  to  a conclusion of guilt in those cases.  In this case there is positive  evidence  that  the  deceased  and  the  accused were  seen  together  by  witnesses  PWs.  3  and  5,  in addition to the evidence of PW-2.”  

17. In  Ramreddy Rajeshkhanna Reddy v.  State of A.P. [2006 (10) SCC

172] it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is  found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration”.

(See also  Bodh Raj v.  State of J&K (2002(8) SCC 45).)”

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18. A similar view was also taken in Jaswant Gir v. State of Punjab [2005

(12) SCC 438] and Kusuma Ankama Rao’s case (supra).

19. It  is  interesting  to  note  that  PWs 3 & 8 claimed to  have seen  the

accused at the same time and to have carried him in the motor cycle which

itself is impossibility.  Additionally neither PW 3 nor PW 8 claimed to have

seen the other witness along with the accused at the relevant point of time.

The High Court noticed that PW 3 Ramjathan stated that on 1.3.1998 he had

taken the accused and the deceased to Hedode Bridge and he was available

in the police station on 2.3.1998 at 11 PM.  The High Court found it strange

that his statement was not recorded on that day.  It rejected the stand of the

learned counsel for State that the crime was registered at about 1.30 AM on

3.3.1998 and thereafter the investigation started and therefore, statement of

PW 3 was recorded afterwards.   In ordinary circumstances it  could have

been accepted as sufficient explanation.  Strangely, the police claimed to

have seized the bicycle of the accused before registration of the crime and to

have recorded his statement as an accused.  According to the prosecution on

the basis  of the aforesaid  statement seizure was made. Not only that,  the

alleged memorandum of statement of the accused was prepared on 2.3.1998

and thereafter as per the prosecution the accused took them to the jungle

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where dead body was lying and discovery panchnama was  *-also prepared

on 2.3.1998.  The discovery panchnama is Exhibit 6/A which was marked

by PW 6.  The signature of the accused was obtained as an accused.  In

other words on 2.3.1998 police was treating the respondent as an accused

and  had  started  investigation.   That  being  so  there  was  no  difficulty  in

recording the statement of PW 3 on 2.3.1998.

20. It is proper to consider and clarify the legal position regarding appeal

and acquittal.  Chapter XXIX (Sections 372-394) of the Code of Criminal

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

appeals.  Section 372 expressly declares that no appeal  shall  lie from any

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

any other law for the time being in force. Section 373 provides for filing of

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

Section  375  bars  appeals  in  cases  where  the  accused  pleads  guilty.

Likewise, no appeal  is  maintainable in petty cases (Section 376). Section

377 permits appeals by the State for enhancement of sentence. Section 378

confers power on the State to present an appeal to the High Court from an

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

extenso:

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

(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,  [the Central Government may, subject to the provisions of sub- section (3), also direct the Public Prosecutor to present an Appeal-- (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 to the High Court 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,

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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).”

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

sections lay down procedure to be followed by appellate courts.

22. 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.

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

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

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

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

has full power to reappreciate, review and reconsider the evidence at large,

the 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.

24. 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.

25. 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

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

point.

26. The first important decision was rendered by the Judicial Committee

of the Privy Council in Sheo Swarup v. R. Emperor  (1934) 61 IA 398).  In

Sheo Swarup  the  accused were acquitted  by the  trial  court  and the  local

Government directed the Public Prosecutor to present an appeal to the High

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

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

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

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

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

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

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

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

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

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

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

Majesty in Council for leave to appeal on the ground that conflicting views

had been expressed by the High Courts in different parts of India upon the

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question whether in an appeal from an order of acquittal, an appellate court

had the power to interfere with  the findings  of fact  recorded by the trial

Judge.  Their  Lordships  thought  it  fit  to  clarify  the  legal  position  and

accordingly upon the “humble advice of their Lordships”, leave was granted

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

considered the scheme and interpreting Section 417 of the Code (old Code)

observed  that  there  was  no  indication  in  the  Code  of  any  limitation  or

restriction  on  the  High  Court  in  exercise  of  powers  as  an  Appellate

Tribunal. The Code also made no distinction as regards powers of the High

Court  in  dealing  with  an  appeal  against  acquittal  and  an  appeal  against

conviction. Though several authorities were cited revealing different views

by the High Courts dealing with an appeal from an order of acquittal, the

Committee did not think it proper to discuss all the cases.

27. 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

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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.”

28. 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.”

20

(emphasis supplied)

29. 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.

30. 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.

31. 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,

21

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)   

32. 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.

33. 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

22

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)   

34. 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.

23

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)   

35. 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

24

evidence;  there  must  also  be  substantial  and  compelling  reasons  for

holding that the trial court was wrong.”  

        (emphasis supplied)

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

Judge  Bench  considered  almost  all  leading  decisions  on  the  point  and

observed that there was no difficulty in applying the principles laid down by

the Privy Council and accepted by the Supreme Court. The Court, however,

noted that appellate courts  found considerable difficulty in understanding

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

decisions. It was observed inter-alia as follows:

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

The Court concluded as follows:   “9.  The foregoing discussion  yields  the following  results: (1) an appellate court has full power to review the evidence upon  which  the  order  of  acquittal  is  founded;  (2)  the principles laid down in  Sheo Swarup case afford a correct guide  for  the  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

25

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.”

37. 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

26

additional condition in clause (a) of Section 423(1) of the Code.  All  that  the  said  observations  are  intended  to emphasize is that the approach of the High Court in dealing with  an  appeal  against  acquittal  ought  to  be  cautious because  as  Lord  Russell  observed  in  Sheo  Swarup the presumption of innocence in favour of the accused ‘is not certainly weakened by the fact that he has been acquitted at his  trial’.  Therefore,  the  test  suggested  by  the  expression ‘substantial  and  compelling  reasons’  should  not  be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in  Sanwat Singh v.  State of Rajasthan and  Harbans Singh v.  State of Punjab (1962 Supp 1 SCR 104)  and  so,  it  is  not  necessary  that  before  reversing  a judgment  of  acquittal,  the  High  Court  must  necessarily characterise the findings recorded therein as perverse.”  

(emphasis supplied)

38. 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.”  

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39. 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 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

28

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)

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

considering the power of the High Court against an order of acquittal under

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

the point it was stated as follows:

“9. The principles are now well settled. At one time it was thought  that  an  order  of  acquittal  could  be  set  aside  for ‘substantial and compelling reasons’ only and courts used to launch  on  a  search  to  discover  those  ‘substantial  and compelling  reasons’.  However,  the  ‘formulae’  of ‘substantial and compelling reasons’, ‘good and sufficiently cogent reasons’ and ‘strong reasons’ and the search for them were abandoned  as  a  result  of  the pronouncement  of  this Court in Sanwat Singh v.  State of Rajasthan (1961) 3 SCR 120.  In  Sanwat  Singh case this  Court  harked back to  the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v.  State  of  Rajasthan this  Court  has  consistently recognised  the  right  of  the  appellate  court  to  review the entire evidence and to come to its own conclusion bearing in mind the considerations 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

29

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

          (emphasis supplied)

41. 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,

30

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.”

42. 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.”   

43. 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

31

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 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”.  

44. In  Harijana  Thirupala v.  Public  Prosecutor,  High  Court  of  A.P.

(2002) 6 SCC 470, this Court said:  

32

“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.”

45. 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

33

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”.  

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

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

                         (emphasis supplied)

47. 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:

34

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

and  reconsider  the  evidence  upon  which  the  order  of  acquittal  is

founded.

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

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

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

questions of fact and of law.

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

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

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

curtail  extensive  powers  of  an  appellate  court  in  an  appeal  against

acquittal.  Such phraseologies  are  more in  the  nature  of  “flourishes  of

language” to emphasise the reluctance of an appellate court to interfere

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

evidence and to come to its own conclusion.

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

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

Firstly,  the  presumption  of  innocence  is  available  to  him  under  the

fundamental principle of criminal jurisprudence that every person shall

be presumed to be innocent unless he is proved guilty by a competent

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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.

48. 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)]:

“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

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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.”

49. 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.

50. 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

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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).

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

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

52. When  the  conclusions  of  the  High  Court  are  considered  in  the

background of the principles set out above, the inevitable conclusion is that

the appeals are without merit, deserve dismissal, which we direct.    

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

……. ...................................J.      (Dr. MUKUNDAKAM SHARMA) New Delhi  December 8, 2008

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