Suraj Singh Vs. State
of U.P.  INSC 1219 (24 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1072 OF 2004 Suraj
Singh ..Appellant Versus State of U.P. ..
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Allahabad High
Court allowing the appeal filed by the State of U.P. questioning the judgment
of acquittal passed by learned Additional Sessions Judge, Special Judge (E.C.
Act), Mainpuri in Sessions Trial No.169 of 1993. Two persons i.e. the present
appellant and his wife Smt. Kapoori Devi were tried for offence punishable
under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC') for the murder of one Jagat Singh (hereinafter referred to as the
`deceased'). The trial Court directed acquittal of the appellant primarily on
the ground that there was discrepancy between the ocular evidence and the
medical evidence, independent witnesses were not examined. In appeal filed by
the State, the High Court held that while the acquittal of Smt. Kapoori Devi
(A-2) was correct, the same was not sustainable so far as the present appellant
facts in a nutshell are as follows:
The incident took
place on 23.9.1992 at about 12.20 p.m. at the house of the deceased Jagat Singh
and the accused persons situated in village Chhibkaria, P.S. Bhongaon, District
The report was lodged
on 23.9.1992 at 1.45 p.m. by the eye- witness Jaivir Singh (PW-1-who was nephew
of the deceased).
The accused are also
close relatives of the deceased. Suraj Singh is son of Ram Sahai Yadav who was
real brother of father of the deceased. Suraj Singh was a police constable and
was posted at Aligarh. He was in shadow duty of an Ex-M.L.A. On the day of
incident, he was going from his house to join his duty. The deceased Jagat
Singh asked him to go after constructing the earth partition of the
agricultural plot. Accused Suraj Singh abused him. His wife Kapoori Devi
exhorted him to go after finishing him. Suraj Singh and his wife then climbed
up their roof. Suraj Singh fired two shots from his gun whereas his wife
Kapoori Devi fired three shots from a revolver which hit Jagat Singh who died
instantaneously. The incident was seen by Sant Saran (PW.2) as also by Dafedar
Singh, Gajraj Singh, Atar Sri- wife of Jagat Singh and other villagers.
Consequent upon the registering of the case, investigation was taken up by
S.S.I. S.K. Dixit (PW.5.) The postmortem over the dead body of the deceased was
conducted by Dr. D.S.Rathore (PW.4) on 24.9.1992 at 1.45 P.M. The following
ante-mortem injuries were found on his person who aged about 50 years. 1.
Lacerated wound 0.5 cm x 0.3 cm x muscle deep on front aspect of left ear pinna
2. Firearm wound 0.5
cm x 0.3 bone deep on right and front aspect of upper part of nose 1.00 cm
below root of nose, underlying nasal bone fractured. Margins charred.
3. Lacerated wound
1.00 cm x 0.4 cm x muscle deep on outer and front aspect of right upper arm,
11.00 cm above the right elbow joint.
4. Two firearm wounds
0.5 cm x 0.3 cm x skin deep anterior outer aspect of right upper, arm, placed 3
cm apart, just above the right elbow.
5. Firearm wound of
entry 0.4 cm x 0.3 cm x muscle deep on front of neck 2.5 cm right to midline
just above the clavicle. Margins inverted and charred.
6. Firearm wound of
entry 0.3 cm. x 0.3 cm. x muscle deep on right side of neck 3.00 cm away from
injury No.5 just 3.00 cm above the clavicle.
Margins charred and
7. Multiple firearm
wounds of entry 0.4 cm x 0.3 cm x chest cavity deep to 0.4 cm x 0.4 cm muscle
deep in size in an area of 7.00 cm x 6.00 cm on front of chest midline on both
sides in middle part of front chest. Margins charred and inverted.
8. Firearm wound of
entry 0.4 cm x 0.4 cm x chest cavity deep on lower part front and outer aspect
of right side of chest 11.00 cm away from right nipple, at 7 O'clock position.
Margins inverted and charred.
examination, two metallic pieces were recovered from the soft tissues of the
neck, two from left ventricle, one pellet from right chest cavity and one from
abdomen cavity. The death had occurred due to shock and haemorrhage owing to
Apart from the
medical and formal evidence including that of investigation, the prosecution
relied upon the testimony of Jaivir Singh (PW-1) and Sant Saran (PW-2) as
eye-witnesses. The defence was of denial.
Trial Court held that
there were discrepancies and accusations have not been established. An appeal
was filed by the State.
The High Court found
that there was no discrepancy so far as the medical evidence and the ocular
evidence is concerned. It was also held that non examination of other persons
did not adversely affect the credibility of the evidence tendered, and when
there is direct evidence of eye witnesses the alleged inconsistency relating to
distance from which the gunshots were fired is of no consequence particularly
when the prosecution version relating to assault by guns and pistol
substantially tallied with the medical evidence. Accordingly, appellant was
found guilty of offence punishable under Section 302 IPC and sentenced to
undergo imprisonment for life.
3. In support of the
appeal, learned counsel for the appellant submitted that the High Court had not
kept in view the parameters of an appeal against acquittal. It is submitted
that when two views are possible on the basis of the evidence on record and the
one favourable to the accused is taken by the trial Court, same should not be
4. Learned counsel
for the State on the other hand supported the judgment and submitted that the
conclusions of the trial Court were erroneous both on law and facts and,
therefore, the High Court was justified in interfering with the order of the
5. In view of rival
submissions of the parties, we think it proper to consider and clarify the
legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as "the present Code") deals
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:
"378. Appeal in
case of acquittal.--(1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5), the State Government
may, in any case, direct the Public Prosecutor to present an appeal to the High
Court from an original or appellate order of acquittal passed by any court
other than a High Court, or an order of acquittal passed by the Court of
Session in revision.
(2) If such an order
of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered
to make investigation into an offence under any Central Act other than this
Code, the Central Government may also direct the Public Prosecutor to present
an appeal, subject to the provisions of sub-section (3), to the High Court from
the order of acquittal.
(3) No appeal under
sub-section (1) or sub- section (2) shall be entertained except with the leave
of the High Court.
(4) If such an order
of acquittal is passed in any case instituted upon complaint and the High
Court, on an application made to it by the complainant in this behalf, grants
special leave to appeal from the order of acquittal, the complainant may
present such an appeal to the High Court.
(5) No application
under sub-section (4) for the grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and sixty days in every
other case, computed from the date of that order of acquittal.
(6) If, in any case,
the application under sub- section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of acquittal
shall lie under sub- section (1) or under sub-section (2).
6. Whereas Sections
379-380 cover special cases of appeals, other sections lay down procedure to be
followed by appellate courts.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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 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.
12. 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
13. 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
14. 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
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."
15. 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.
16. 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
17. 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."
18. 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
19. 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
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".
20. 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
21. 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 17 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."
22. 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
23. 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:
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
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
19 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
24. 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 20
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."
25. 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
26. 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.
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
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."
27. 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:
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 25 reasonable."
28. In Ramesh Babulal
Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said:
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."
29. In Allarakha K.
Mansuri v. State of Gujarat (2002) 3 SCC 57, referring to earlier decisions,
the Court stated:
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 26
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."
30. In Bhagwan Singh
v. State of M.P. (2002) 4 SCC 85, the trial court acquitted the accused but the
High Court convicted them.
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
"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 27 passing an order
of acquittal the presumption of innocence in favour of the accused is
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".
31. In Harijana
Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470, this Court
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 28 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."
32. 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".
29 whether any of
the accused committed any offence or not".
33. Again in Kallu v.
State of M.P. (2006) 10 SCC 313, this Court stated:
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.
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."
34. 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, re-appreciate 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 31 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.
35. 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)]:
multiplication rule does not apply if the separate pieces of evidence are
Two events are
dependent when they tend to occur together, and the evidence of such events may
also be said to be dependent. In a criminal case, different pieces of evidence
directed to establishing that the defendant did the prohibited act with the
specified state of mind are generally dependent. A junior may feel doubt
whether to credit an alleged confession, and doubt whether to infer guilt from
the fact that the defendant fled from justice. But since it is generally guilty
rather than innocent people who make confessions, and guilty rather than
innocent people who run away, the two doubts are not to be multiplied together.
The one piece of evidence may confirm the other."
36. 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
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.
37. The concepts of
probability, and the degrees of it, cannot obviously be expressed in terms of
units to be mathematically enumerated as to how many of such units constitute
proof beyond reasonable doubt. There is an unmistakable subjective element in
the evaluation of the degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust common sense and,
ultimately, on the trained intuitions of the Judge. While the protection given
by the criminal process to the accused persons is not to be eroded, at the same
time, uninformed legitimization of trivialities would make a mockery of
administration of criminal justice. This position was illuminatingly stated by
Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal
(1988 (4) SCC 302).
38. The above
position was highlighted in Krishnan and Anr. v.
State represented by
Inspector of Police (2003 (7) SCC 56).
39. So far as
discrepancy between ocular evidence and medical evidence is concerned, this
Court in Kamaljit Singh v. State of Punjab (2003 (12) SCC 155) observed as
"It is trite law
that minor variations between medical evidence and ocular evidence do not take
away the primacy of the latter. Unless medical evidence in its term goes so far
as to completely rule out all possibilities whatsoever of injuries taking place
in the manner stated by the eyewitnesses, the testimony of the eyewitnesses
cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat (1983
(2) SCC 174).
The position was
illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal
(1988 (4) SCC 302). When the acquittal by the trial court was found to be on
the basis of unwarranted assumptions and manifestly erroneous appreciation of
evidence by ignoring valuable and credible evidence resulting in serious and
substantial miscarriage of justice, the High Court cannot in this case be found
fault with for its well-merited interference.
40. Coming to the
plea that the medical evidence is at variance with ocular evidence, it has to
be noted that it would be erroneous to accord undue primacy to the hypothetical
answers of medical witnesses to exclude the eyewitnesses' account which had to
be tested independently and not treated as the "variable"
keeping the medical
evidence as the "constant".
41. It is trite that
where the eyewitnesses' account is found credible and trustworthy, medical
opinion pointing to alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice. Hence the
importance and primacy of the quality of the trial process.
would require a careful independent assessment and evaluation for its
credibility which should not be adversely prejudged making any other evidence,
including medical evidence, as the sole touchstone for the test of such
credibility. The evidence must be tested for its inherent consistency and the
inherent probability of the story; consistency with the account of other
witnesses held to be creditworthy;
consistency with the
undisputed facts, the "credit" of the witnesses; their performance in
the witness box; their power of observation etc. Then the probative value of
such evidence becomes eligible to be put into the scales for a cumulative
42. In the instant
case, the trial Court erroneously concluded that the medical evidence was at
variance with the ocular evidence. The oral testimony is not at variance with
the medical evidence as rightly observed by the High Court.
43. This Court in
Lila Ram (D) thr. Duli Chand v. State of Haryana and Anr. (JT 1999 (6) SC 274)
held that it was immaterial whether one or two gunshots were fired. Such contradiction
does not travel to the root of the nature of the offence. The discrepancy in
ocular and medical evidence vis-a- vis distance cannot affect the credibility
of evidence. In State of U.P. v. Suhar Singh (AIR 1987 SC 191) it was observed
that when there is direct evidence of eye witness available the inconsistency
relating to distance from which the gunshots were fired is of no consequence
when the prosecution evidence pertaining to assault by guns and pistol
substantially tallied with the medical evidence. The present case, belongs to
was no discrepancy pointed out in the evidence of eye witnesses. Merely because
PW-1 and PW-2 were close relatives of the deceased, that cannot be a ground to
affect credibility of their evidence. Looked at from any angle there is no
merit in the appeal which is accordingly dismissed.
ARIJIT PASAYAT) ..........................................J.