REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 1271 OF 2001

State of U.P. ..Appellant  

versus

Dinesh ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.  Questioning correctness of the judgment of a Division Bench of the

Allahabad High Court directing acquittal of the respondent, this appeal has

been filed by the State of Uttar Pradesh. Learned IV Additional Sessions

Judge,  Lakhimpur,  Kheri,  had  convicted  the  respondent  for  offence

punishable  under  Section  302  of  the  Indian  Penal  Code,  1860  (in  short

‘IPC’)  and  sentenced  him  for  life  imprisonment  in  Sessions  Trial

No.469/92.

2. The prosecution version in a nutshell is as follows:

Complainant  Sita  Saran (PW 3) filed a written report  Ex. Ka-1 on

24.5.1991 at P.S. Kotwali, stating that he is a resident of Mohammadpur,

P.S. Kotwali,  and his sister is  married to Amritlal,  Amkotwa (hereinafter

referred  to  as  the  ‘deceased’)  resident  of  village  Amkotwa.   Today  on

24.5.1991  he  was  going  with  his  brother-in-law  (sister’s  husband)  on  a

bicycle from village Saherua at Amkotwa after delivering milk to Amebarati

Lal at village Saherua. He was accompanied by Ram Lakhan of Amkotwa

and his nephew Rajesh.  When they reached near Habib’s field from village

Saherua, two persons named Dinesh, the respondent and Vinod, belonging

to village Amkotwa, and armed with country made pistol and knife came

out of said field.  They caught  the complainant’s brother-in-law, Amrit Lal

with his bicycle, took him into Habib’s field saying they would take revenge

by murdering him.  Vinod and Dinesh fired from the country made pistols at

his  brother-in-law  who  got  struck  and  fell  down.   Thereafter  Dinesh

assaulted  him  with  a  knife.   When  the  complainant  raised  an  alarm,

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Ramadhar, Prakash and others from village Baheiya came and challenged

the assailants, who ran away towards Pachkotwa. On being pursued by the

people, they threatened them.  Thereafter the complainant and others gave

up  the  chase.  These  persons  murdered  his  brother-in-law  because  his

brother-in-law’s  brother  Radhey shyam had  brought  a  tractor  which  was

needed by Vinod, but his brother-in-law would not allow Vinod to use it.  It

is for this reason that the murder was committed.  The dead body was lying

in the field.  The incident took place at 10.30 a.m.  On the basis of the above

written report, F.I.R. was written at P.S. Kotwali on 24.5.1991 at 11.20 a.m.

Thereafter the investigations in the case began.  Sub-Inspector Vishwa Nath

Pandey prepared the inquest Ex. Ka-2 at the site, photo of the dead body Ex.

Ka-10 was taken, specimen of the seal Ex. Ka-11. Memo for recovery of the

bicycle at the site, Ex. Ka-12, Memo Ex. Ka-13 for collecting ordinary and

blood stained soil  from the site.   After completing investigations,  charge

sheet Ex. Ka-6 was filed against accused Vinod and Dinesh.

Since the accused persons pleaded innocence, trial was held.

During the pendency of the trial,  accused Vinod died on 7.2.1994.

Eight persons were examined to further the prosecution version.  PWs. 1 to

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4  were  stated  to  be  eye-witnesses  to  the  occurrence.   During  trial  Om

Prakash (PW 1) and Ram Dhan (PW 2) resiled from their statements made

during investigation and, therefore, prosecution with the permission of the

court,  cross-examined them.  The trial  Court  found  the  evidence  of  Sita

Saran  and  Rajesh  Kumar  (PWs.  3  and  4)  to  be  cogent  and  directed

conviction as noted above.  The respondent filed an appeal questioning the

conviction  as  recorded.   The  High  Court  noticed  discrepancies  in  the

evidence of PWs. 3 and 4.  PW 3 was related to the deceased while PW4

was his son who was aged about 10 years at the time of occurrence.  The

High Court  noticed that motive is not of much importance when credible

evidence is available.  If found that the motive highlighted was too feeble to

be of any consequence.  Apart from that the High Court found presence of

PW3 to be highly improbable.  It noticed that there was no sign of dragging

at the place of occurrence as was stated by PWs. 3 and 4 and also there was

no injury which could be co-related with dragging. All the injuries noticed

were either incised injuries or on account of firearm.  The High Court found

that both PWs 3 and 4 stated that respondent Dinesh and co-accused Vinod,

who died, during trial fired one shot each from the guns held by them.  The

doctor who conducted post-mortem found that there was only one fire arm

injury.  To make up discrepancy PWs. 3 and 4 stated that  certain empty

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cartridges and two live cartridges were found at the place of occurrence by

the Investigating Officer.  But the Investigating Officer stated that he did

not  find  either  any  empty  cartridge  or  live  cartridge  at  the  scene  of

occurrence. It is to be further noted that both PWs 3 and 4 stated that while

the deceased was being restrained by one hand each by the two accused

persons, they shot him from the other hand.  In other words, their version

was  that  the  accused  persons  fired  at  the  deceased  from  a  very  short

distance.  The doctor’s evidence clearly ruled out this aspect.   He noticed

that only skin deep injury was there and not any penetrating wound.  PW.3

had stated that all the knife injuries were inflicted when the deceased was in

a lying posture and according to Rajesh Kumar (PW.4) even at that time

both the accused persons were catching hands of the deceased.  The doctor

found that all the injuries found on the deceased were incised wounds and

not a single puncture wound was found on the deceased.  The doctor further

stated that there was no possibility of the incised injuries Nos.1 to 13 being

caused to the deceased while he was lying on the ground.

To add to the vulnerability, the High Court pointed out that according

to SI PW.7 Vishwanath Pandey inquest was completed around noon time

and the  dead body was sent  to  the  Mortuary at  1.45  p.m. on  24.5.1991.

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According to PW.3 Sita Saran, she had accompanied the dead body to the

mortuary. The post-mortem examination was, however, conducted at about

3.00 p.m. on 25.5.1991.  From the perusal of the records the High Court

noticed that the papers were received at the mortuary on 25.5.1991 around

12.30 p.m.  The High Court found it improbable that only the dead body

was purportedly sent but no documents were sent.

The High Court further found that there were several circumstances

which belied prosecution claim that the FIR was lodged on 24.5.1991.

3. Learned  counsel  for  the  appellant  submitted  that  the  discrepancies

highlighted  by  the  High  Court  are  not  very  material  to  discard  the

prosecution version and the trial court’s judgment should have been upheld.

4. It would be appropriate to consider and clarify the legal position first.

Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973

(hereinafter  referred  to  as  “the  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

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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:

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

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

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

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

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(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal  passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.

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

(4)  If  such  an  order  of  acquittal  is  passed  in  any  case instituted  upon  complaint  and  the  High  Court,  on  an application  made  to  it  by  the  complainant  in  this  behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5)  No  application  under  sub-section  (4)  for  the  grant  of special leave to appeal from an order of acquittal shall  be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the  grant  of  special  leave  to  appeal  from  an  order  of acquittal  is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).

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

Sections lay down procedure to be followed by appellate courts.

6. 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

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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.

7. Bare reading of Section 378 of the 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.

8. 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

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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.

9. 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.

10. 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

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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.

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11. 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.”

12. 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.”

13. 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

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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)

14. 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.

15. 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.

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16. 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)   

17. 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.

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18. 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”.

19. 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)   

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20. 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)   

21. 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

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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)

22. 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:

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 “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.”

23. 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

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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)

24. 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

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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.”  

25. 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

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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)

26. 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

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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)

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27. 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.”

28. 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.”

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29. 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

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purposes  of  ascertaining  as  to  whether  all  or  any  of  the accused has committed any offence or not”.  

30. 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.”

31. 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

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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”.  

32. 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)

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33. 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.

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(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.

34. In the instant case the discrepancies highlighted by the High Court

cannot be stated to be trival. The conclusions arrived at by the High Court

clearly establish material infirmities and contradictions on the evidence of

the two vital witnesses PWs. 3 and 4.  It is true that PW.4 was a child of

about 10 years. But the court had found him to be in a position to depose.

But the High Court has found that the presence of PW.3 at the spot is highly

improbable  in  view of  certain  aspects  highlighted.  One of  them was  his

claim to have accompanied the deceased to the house of one Barati Lal for

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delivering milk in a Milk Can. In his cross-examination he admitted that he

does not know where the house of the Barati Lal is.  According to him, he

and the deceased were returning after delivering the milk in a Can and the

Can was  tied  to  the  cycle  on  which  both  of  them were  travelling.   The

Investigating Officer admitted that there was no Can lying at the place of

occurrence and in fact no seizure of any Milk Can has been made.  Apart

from that the medical evidence clearly rules out the manner of infliction of

injuries  as  deposed.   Though  ocular  testimony  of  witnesses  had  greater

evidentiary value  vis-à-vis  medical  evidence,  but  when medical  evidence

totally improbablises the ocular testimony, that becomes a relevant factor in

the  process  of  evaluation  of  evidence.  In  the  instant  case  the  medical

evidence totally improbablises the version regarding the manner of assault

by both the accused persons as noted above.

35. Above being the position, we find no merit in this appeal, which is

accordingly dismissed.       

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

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

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New Delhi, February 25, 2009  

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