REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 698 OF 2003

State of Rajasthan ..Appellant

Versus

Yusuf          ..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 Rajasthan  

High  Court,  Jodhpur,  directing  acquittal  of  the  respondents,  who  were found  guilty  of  

offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) by  

the Learned Additional Sessions Judge, Sojat, Shivir.

2. Background facts in a nutshell are as follows;

Smt. Sugra was wife of accused Yusuf, who was married with her 20 years ago.  Smt. Sugra  

was blessed with two daughters; one was 12 years old and other was 5 years old.  At about 1  

O’ clock on 25.2.1986 Smt. Sugra was thinking to prepare lunch in the kitchen. Just then her  

husband accused Yusuf  entered in the house and asked her to get out of house.  Smt. Sugra  

told him that she will leave only after a lapse of three months.  On this Smt. Sugra’s husband  

said that he would bring another wife, and Yusuf poured a bottle of Kerosene Oil on her and  

lit the fire.  She rushed out of the house, then the daughter in law of Mahmood Khan and

Farid Khan came out and threw a bucket of water on her. The Accused ran away through  

the crops of mustard. Head Constable Vijay Kumar and Constable Prabhu Singh of Jaitaran  

Police Station chowki were patrolling. The children heard the sound of running and crying  

that a woman is burnt whereupon they reached the spot. A woman was sitting outside the  

house of Sugra who was almost in naked condition. Sugra was covered with a blanket, which  

was lying on the cot,  and with the help of a motorcyclist she was taken to hospital with  

constable Prabhu Singh in the hospital, Sugra's statements were recorded by the S.H.O. of  

Jaltaran. On the basis of above statement, case was lodged under Sec. 307 I.P.C.

Site of occurrence was inspected on the day of occurrence itself and Memo Ex.P-1 was made  

During the inspection, on the spot (i.e. the kitchen) a kerosene bottle was found and sealed  

and pieces of burnt clothes were found outside the kitchen. A match-box was found in the  

kitchen.  Collecting the pieces of burnt clothes from the spot, Memo. Ex.P-2 was prepared  

and memo Ex.P-3 of recovered burnt clothes - from the body of Smt. Sugra was prepared.  

During  the  investigation,  certificate  ExP-1  regarding  the  condition  of  Sugra  for  giving  

statement  was  prepared.  Smt.  Sugra's  statement  just  before  her  dying  declaration  was  

recorded on  the  day  of  incident  at  3:20  P.M.  by  S.H.O.  Jaltaran which  is  exhibited  as  

Ex.P.13. On 25/02/1986  statements of Ishq Ali, Mojhnuddin, Narpat Singh, Kaal, Jannat.  

Fatma,  Sadiq,  Tultana,  and  Anwar  were  recorded.  On  27.2.1986  Smt.  Sugra’s  dying  

declaration  was  recorded  by  the  Additional  Chief  Judicial  Magistrate  Jaltaran.   Injury  

report of Smt. Surga was received vide Ex.P-4.

On completion of investigation chargesheet was filed. Charges under Sec. 302 IPC against  

accused Yusuf and Charges under Section 120-B read with article 302 IPC against other six  

accused personss was read over to them. Accused persons denied the charges and claimed  

trial. On behalf of the prosecution side 29 witnesses were produced in the said case.

Statements  of  accused  persons  were  recorded  under  Sec.  313  of  the  Code  of  Criminal

Procedure,  1973 (in  short ‘Cr.P.C’).  In their statements,  accused said that  statements of  

witnesses are wrong and  that Sugra's father has burnt her and lodged this false  case in the  

court. Accused persons,  in support of their defence, examined DW-1 Rajkumar.  According  

to  the evidence of D.W.1 Rajkumar, on listening to the shrieks and noise, reached to the  

spot first and throw water on Sugra and put off the fire and wrapped her in a blanket. Sugra  

told him that his father wanted to get her killed and Sugra had burnt herself and her father  

was standing outside the door.

P.W.21  Dr.  Kailash Chander Mathur on 20/05/86  was on the  post  of  Medical  Jurist  in  

Amritkaur Hospital at Beawer. In his statement this witness has admitted that on that day,  

on the request of Police Station Beawer he performed the postmortem of Smt. Sugra W/o  

Mohd.  Yusuf at  10:30 AM. It has been stated that  Postmortem was done by the Board,  

whose members were he himself and Dr. Nirmala Agarwal and Dr. Gopa1 Mathur. This  

witness has stated that the medical board was of the view that the cause behind Sugra’s  

death was toxemia due to extensive burn and she had died within six hours of postmortem.  

He stated that the postmortem report is written by him and bears his signature from A to B.  

The  statement  of  this  witness  makes  it  clear  that  injuries  of  burn  caused  her  death.  

According to Trial Court to be determined as to whether Sugra as per the accused persons,  

burnt herself or she was burnt by her father or Smt. Sugra was burnt by her husband after  

conspiring with other accused.

The trial court relied on the purported dying declaration and found the appellant guilty.  

The High Court found that there were several variations in the dying declaration and apart  

from that the High Court found that the dying declaration was not reliable and was not free  

from infirmity.  The High court found that the deceased had not made truthful statement.  

Primarily three circumstances were highlighted to find the dying declaration unacceptable.  

They were:

1. a false statement about pregnancy;

2. the statement about the marital status.

3. false implication of a large number of family members of the accused.

The  High  Court  found  that  the  four  statements  given  by  her  and  described  as  dying  

declaration  and  the  statement  under  Section  161  of  the  CrPC  indicated  that  she  was  

consistently improving her version to implicate the accused somehow or other.

It was also found that her statement about the whereabouts of the children were also proved  

to be false.  Accordingly High Court directed acquittal.

3. Learned counsel for the appellant submitted that even if there were exaggerations  

that should not have weighed with the High Court to direct acquittal.

4. Learned counsel for the respondent supported the judgment of the High Court.

5. This is a case where the basis of conviction of the accused is the dying declaration.  

The situation in which a person is on the deathbed is so solemn and serene when he is dying  

that the grave position in which he is placed, is the reason in law to accept the veracity of his  

statement.  It  is  for this  reason that  the  requirements of  oath  and cross-examination  are  

dispensed  with.  Besides,  should  the  dying  declaration  be  excluded,  it  will  result  in  the  

miscarriage of justice because the victim being generally the only eyewitness in a serious  

crime, the exclusion of the statement would leave the court without a scrap of evidence.

6. Though a dying declaration is entitled to great weight, it is worthwhile to note that  

the accused has no power of cross-examination. Such a power is essential for eliciting the  

truth as an obligation of oath could be. This is the reason the court also insists that the dying  

declaration  should  be  of  such  a  nature  as  to  inspire  full  confidence  of  the  court  in  its  

correctness. The court has to be on guard that the statement of the deceased was not as a  

result  of  either tutoring,  or prompting  or a  product  of  imagination.  The court  must  be  

further satisfied that the deceased was in a fit state of mind after a clear opportunity to

observe and identify the assailant. Once the court is satisfied that the declaration was true  

and voluntary,  undoubtedly,  it  can base its  conviction  on the  same without  any further  

corroboration. It cannot be laid down as an absolute rule of law that the dying declaration  

cannot  form  the  sole  basis  of  conviction  unless  it  is  corroborated.  The  rule  requiring  

corroboration is merely a rule of prudence. This Court has laid down in several judgments  

the principles governing dying declaration, which could be summed up as under as indicated  

in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon  

without corroboration. [See: Munnu Raja v. State of M.P.(1976 (3) SCC 104)]

(ii)  If  the  court  is  satisfied that  the  dying  declaration is  true  and voluntary it  can base  

conviction on it, without corroboration. (See: State of U.P. v. Ram Sagar Yadav (1985(1) SCC  

552) and Ramawati Devi v. State of Bihar 1983(1) SCC 211))

(iii)  The court has to scrutinise the dying declaration carefully and must ensure that the  

declaration is not the result of tutoring,  prompting or imagination. The deceased had an  

opportunity  to  observe  and  identify  the  assailants  and  was  in  a  fit  state  to  make  the  

declaration. [See: K. Ramachandra Reddy v. Public Prosecutor(1976(3) SCC 618)])

(iv)  Where  a  dying  declaration  is  suspicious,  it  should  not  be  acted  upon  without  

corroborative evidence. [See: Rasheed Beg v. State of M.P.(1974(4) SCC 264)]

(v) Where the deceased was unconscious and could never make any dying declaration the  

evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P.(1981 Supp. SCC  

25)]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.  

[See: Ram Manorath v. State of U.P.(1981(2)SCC 654]

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it  

is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp.   

SCC 455)]

(viii)  Equally,  merely because  it  is  a  brief  statement,  it  is  not  to  be  discarded.  On  the  

contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v. State  

of Bihar (1980 Supp.SCC 769)]

(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition  

to make the dying declaration looks up to the medical opinion. But where the eyewitness said  

that the deceased was in a fit and conscious state to make the dying declaration, the medical  

opinion cannot prevail. [See: Nanhau Ram v. State of M.P.(1988 Supp. SCC 152)]

(x) Where the prosecution version differs from the version as given in the dying declaration,  

the said declaration cannot be acted upon. [See:  State of U.P. v.  Madan Mohan (1989 (3)   

SCC 390)]

(xi) Where there are more than one statements in the nature of dying declaration, the one  

first in point of time must be preferred. Of course, if the plurality of the dying declaration  

could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram  

Gehani v. State of Maharashtra (1982 (1) SCC 700)]

7. In  the  light  of  the  above  principles,  the  acceptability  of  the  alleged  dying  

declaration in the instant case has to be considered. The dying declaration is only a piece of  

untested evidence and must, like any other evidence, satisfy the court that what is stated  

therein is the unalloyed truth and that it is absolutely safe to act upon it.  If after careful  

scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased  

to  make a  false  statement  and  if  it  is  coherent  and  consistent,  there  shall  be  no  legal  

impediment  to  make it  the  basis  of  conviction,  even  if  there  is  no  corroboration.  (See  

Gangotri Singh v. State of U.P.(1993 Supp(1)SCC  327).

8. When the evidence on record has been examined in great detail by the trial Court  

and the High Court to place reliance on the dying declaration, the conclusions cannot be in

any way faulted.  

9. In the instant  case the High Court has found  the dying declaration to be not  

truthful and that there was an inherent attempt to falsely implicate the accused which was  

borne  out  by  various  statements  in  the  so  called  dying  declaration  which  were  proved  

beyond doubt to be false.

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 Court from an order of acquittal under Section 417 of the old  

Code (similar to Section 378 of the 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 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.”

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  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  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  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.

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 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.”

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 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  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 Section 378 of the 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 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:  

“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 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.”

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 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 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. In our considered view it does not appear to be a case where any interference is  

called for.

37. Appeal deserves dismissal, which we direct.

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

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

New Delhi, April 27, 2009