Aher Raja Khima Vs. The State of
Saurashtra  INSC 79 (22 December 1955)
VIVIAN AIYYAR, T.L. VENKATARAMA AIYAR, N.
CITATION: 1956 AIR 217 1955 SCR (2)1285
Appeal against Acquittal--Scope of--Powers of
Court-Guiding principles--Code of Criminal Procedure (Act V of 1898), s. 417.
Per BOSE, and CHANDRASEKHARA AIYAR JJ.
(VENKATKRAMA AYYAR J. dissenting). It is well settled that the High Court
should not set aside an order of acquittal under s. 417 of the Code of Criminal
Procedure simply because it differs from the trial Court as to the appreciation
of the evidence;
there must be substantial and compelling
reasons for doing so. Where the trial Court takes a reason. able view of the
facts of the case, interference is not justifiable unless there are really
strong reasons for holding otherwise.
Amar Singh v. State of Punjab ( S.C.R.
418) and Surajpal Singh v. State ( S.C.R. 193), referred to.
The accused in a criminal case must be given
the benefit of every reasonable doubt and, therefore, when he offers a
reasonable explanation of his conduct, although he cannot prove it, that
explanation should ordinarily be accepted unless the circumstances indicate
that it is false.
Consequently, in a case where an accused
person, charged under SS. 302 and 447 of the Indian Penal Code, repudiated his
confession at the earliest opportunity as having been made under Police threats
administered to him at night while in jail custody and there was evidence to
show that the Police had access to him there, and there was nothing to displace
his statement that he was threatened by them, the finding of the Sessions Judge
that the confession was not voluntary in character was fair and reasonable and
in the absence of any compelling reason the High Court should not have set
aside the order of acquittal.
1286 As the evidence otherwise was
insufficient to warrant a conviction the accused was acquitted.
Per VENKATARAMA AYYAR J. This is not a case
in which the Supreme Court should interfere under Art. 136 of the Constitution.
The Constitution by specifically providing for an appeal on facts under Art.
134(1) intended to exclude it under Art. 136 and like the Privy Council this
Court will not function as a further Court of appeal on facts in criminal
The fact that the appeal in the High Court
was one against an order of acquittal makes no difference as the powers of an
appellate Court are the same in all appeals, whether against acquittal or
Pritam Singh v. The State ( S.C.R.
453), Sheo Swarup v. King-Emperor ( L.R. 61 I.A. 398) and Nur Mohammad v.
Emperor (A.I.R. 1945 P.C. 151), relied on.
The expression "compelling reasons"
used in Surajpal Singh's case should be read only in the context of that case
and should not be treated as a rigid formula so as to restrict the powers of
the Court, or the right of appeal conferred on the State by s. 417 of the Code
or to place a judgment of acquittal in a position of vantage and give the
accused a protection which the law does not afford to them.
Such a formula can be of use only as guiding
principle for the appellate Courts in deter-mining questions of fact.
Surajpal Singh v. The State ( S.C.R.
Consequently, the findings arrived at by the
High Court were not open to review by this Court under Art. 136 of the
Constitution and as there was evidence apart from the retracted confession to
support the view, it had taken on merits, the appeal must be dismissed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 64 of 1955.
On appeal by special leave from the judgment
and order dated the 27th February 1954 of the Saurashtra High Court at Rajkot
in Criminal Appeal No. 108 of 1953 arising out of the judgment and order dated
the 5th March 1953 of the Court of Sessions Judge, Halar Division in Sessions
Case -No. 26 of 1952.
V. N. Sethi, for the appellant.
R. Ganapathy Iyer and R. H. Dhebar, for the
1955. December 22.
BOSE J.-The only question in this appeal is
whether the High Court bad in mind the principles 1287 we have enunciated about
interference under section 417 of the Criminal Procedure Code when it allowed
the appeal filed by the State against the acquittal of the appellant. 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: Amar Singh v. State of
Punjab(1) and if the trial Court takes a reasonable view of the facts of the
case, interference under section 417 is not justifiable unless there are really
strong reasons for reversing that view: Surajpal Singh v. State(2).
The appellant was prosecuted under sections
302 and 447 of the Indian Penal Code for the murder of Aher Jetha Sida. It is
not necessary at the moment to set out the facts. It is enough to say that the
High Court based its conviction on a retracted confession plus certain
circumstances which the learned Judges regarded as corroborative.
The learned Sessions Judge excluded the
confession on the ground that it was neither voluntary nor true. The learned
Judge's reasoning about its falsity is weak. We do not think there is material
on which a positive finding about its falsity can be reached but *hen he says
that he is not satisfied that it was made voluntarily we find it impossible to
hold that is a view which a judicial mind acting fairly could not reasonably
The facts about that are as follows. The
offence was committed during the night of the 18th/19th May 1952. The police
were informed on the 19th morning at 9-30. The police station was only 4 miles
distant and they started investigation immediately. The appellant was arrested
on the 20th. He says in his examination under section, 342, Criminal Procedure
Code, that three other persons were also arrested but were later released. They
are Bhura, Dewayat and Kana. The investigating officer was not examined, so he
could not be asked about this and the point could not be developed further. But
the appellant did cross-examine some of the prosecution witnesses (1) 
S.C.R. 418, 423.
(2)  S.C.R. 193, 201, 1288 about this
and elicited contradictory replies. Kana, P.W.
4, said"I was not arrested. Dewayat, Barat
Lakhmansingh was arrested first........ All the three of us were released the
same evening. We were not put under arrest at all".
Dewayat, P.W. 5, denied that either he or any
of the others were arrested and Maya, P.W. 15, said the same thing but Meraman,
P.W. 11, insisted that Dewayat was arrested.
In the absence of the Sub Inspector it is
difficult to say definitely that the appellant is wrong. It is evident that the
others were at least suspected, especially as one of the points made against
the appellant is that he was seen sharpening an axe on the evening of the
murder and Meraman, P.W. II, says that not only was the appellant sharpening an
axe but so was Dewayat. If this was a matter of suspicion against the appellant
it must equally have been so against Dewayat and accordingly there is nothing
improbable in the appellant's statement about these other arrests; and as the
Sub Inspector was not there to clear up the matter it is only fair to accept
what the appellant says.
The appellant was sent to a Magistrate at 8
p.m. on the 21st for the recording of a confession but the Magistrate did not
record it till the 3rd of June. He was examined as P.W. 21 and explained that
be gave the appellant ten days for reflection. The length of time is unusual
but no objection about its fairness to the accused could reasonably have been
raised bad it not been for the fact that the judicial lock-up is in charge of a
police guard which is under the direct control, orders and supervision of the
very Sub Inspector who had conducted the investigation and had earlier
suspected and, according to the accused, actually arrested three other persons;
and two of them are now called as prosecution witnesses to depose against the
appellant about a matter on which the prosecution lay great importance, namely
the sharpening of an axe. The danger that they might exaggerate their stories
or give false evidence in their anxiety to avert further suspicion from
themselves is 1289 one that cannot be overlooked.
But apart from that. This is the description
of the judicial look-up which the Magistrate who recorded the confession (P.W.
21) gives us:
"A police guard is on 24 hours duty at
the Bhanwad Judicial lock-UP. The prisoner is so placed within the compound
wall that he can see the police all the 24 hours through the bars and can talk.
These police officers are under the police Sub-Inspector. A peon is working as
warder. He stays there on duty by day. At night he is not there.
Clerk Jailor does not remain present there.
The police lock-up is within the ail itself. Inside the jail gate is the police
lock-up. The police can go into the police lockup when they choose".
Now the appellant repudiated his confession
at the earliest opportunity. He told the Committing Court on 12-12-1952 in a
written statement that"After my arrest by the police I was sent to jail.
At night time the police, having arrived at the jail, threatened me to make
confession before Court as they directed. The police frightened me with beating
if I did not confess. As a result of which, through fright, I have made a false
confession as directed by the police and which I now deny".
And in his examination under section 342,
Criminal Procedure Code, he said"I have made the confession because the
police were threatening to beat me in the jail.
He repeated these statements in the Sessions
Court. He said he was beaten at the time of his arrest and then after he had
been sent to the jail he said"I was daily threatened. They said 'confess
the offence of murder. We shall get you on remand. You will live as an impotent
man'. On the morning of the 3rd date, they took me to a big police officer
after administering extraordinary threats. Only now I come to know that he is
the Magistrate".., Now it may be possible to take two views of this
statement but there are two important factors in every criminal trial that
weigh heavily in favour of an accused person,: I one is that the accused is
entitled 1290 to the benefit of every reasonable doubt and the other., an
off-shoot of the same principle, that when an accused person offers a
reasonable explanation of his conduct, then, even though be cannot prove his
assertions, they should ordinarily be accepted unless the circumstances
indicate that they are false. What the appellant said in this case is not
impossible; such things do happen and it is understandable that the police,
frustrated in their endeavour to find the culprit among three other persons,
should make an all out endeavour to make sure of the fourth.
We do not say that happened here. But that it
might have happened is obvious, and when the police absent themselves from the
witness box and forestall attempts at crossexamination, we find it impossible
to hold that a judge acting judicially, and hearing in mind the important principles
that we have outlined above, can be said to have reached an unreasonable or an
unfair conclusion when he deduces from these circumstances that there is a
reasonable probability that the appellant's story is true and that therefore
the confession was not voluntary.
The only reason that the learned High Court
Judges give for displacing this conclusion is that "in Saurashtra........
though judicial and police lockups are placed under a common guard the judicial
lock-ups are in charge of Magistrates and are looked after by their clerks and
peons, who are assigned the duties of jailors and warders respectively"
and they conclude"It is therefore difficult to say that the police could
have effectively threatened him".
But what the learned Judges overlook is the
fact that this control is only effective during the day and that at night
neither the peon nor the clerk is there; and even during the day the
"clerk-cum-jailor does not remain present there".
The appellant said in his written statement
that "at night time the police, having arrived at the jail, threatened me,
etc". There is nothing on the record to displace this statement. Had the
Sub-Inspector or some policeman been examined as a witness and had the
appellant omitted to 1291 cross-examine him about this, that might have raised
an inference that what the accused said was only an afterthought. But here we
find that this defence about the involuntary nature of the confession due to
threats by the police was raised at the outset, even in the Committing
Magistrate's Court, and was persisted in throughout and the appellant did what
he could to build up this part of his case by cross examining the only official
witness who did appear, namely the Magistrate who recorded the confession;
and he succeeded in establishing that there
was ample opportunity for coercion and threat. The fact that this defence was
raised in the Committal Court should have put the prosecution on its guard and
the absence of refutation in the Sessions Court is a matter that can legitimately
be used in the appellant's favour. In the circumstances, we do not think the
High Court has squarely met the learned Sessions Judge's reasoning and shown
that there are compelling reasons for holding that he was wrong; on the
contrary, the learned Sessions Judge's hesitation is grounded on well
established judicial principles.
Now the law is clear that a confession cannot
be used against an accused person unless the Court is satisfied that it was
voluntary and at that stage the question whether it is true or false does not
arise. It is abhorrent to our notions of justice and fair play, and is also
dangerous, to allow a man to be convicted on the strength of a confession
unless it is made voluntarily and unless he realises that anything he says may
be used against him; and any attempt by a person in authority to bully a person
into making a confession or any threat or coercion would it once invalidate it
if the fear was still operating on his mind at the time he makes the confession
and if it "would appear to him reasonable for supposing that by making it
he would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him": section 24 of the Indian Evidence Act.
That is why the recording of a confession is hedged around with so many
safeguards and is the 163 1292 reason why magistrates ordinarily allow a period
for reflection and why an accused person is remanded to jail custody and is put
out of the reach of the investigating police before he is asked to make his
confession. But the force of these precautions is destroyed when, instead of
isolating the accused from the investigating police, he is for all practical
purposes sent back to them for a period of ten days. It can be accepted that
this was done in good faith and we also think that the police acted properly in
sending the appellant up for the recording of his confession on the 21st; they
could not have anticipated this long remand to so-called "jail
custody". But that is hardly the point. The fact remains that the remand
was made and that opened up the very kind of opportunities which the rules and
prudence say should be guarded against; and, as the police are as human as
others, a reasonable apprehension can be entertained that they would be less than
human if they did not avail themselves of such a chance.
If the confession is excluded, then there is
not, in our opinion, sufficient evidence against the appellant on which a
conviction can be based.
It will now be necessary to set out the
The murdered man is one Jetha. He married
Sunder, P.W. 3, about three years before he was killed, but we gather that she
had not gone to live with her husband; anyway, she was living in the
appellant's village Shiva with her people at the time of the occurrence and
this afforded the pair opportunities for a long continued course of illicit
amours, chances which it seems they were not slow to seize. The husband lived
in a village Kalawad which is three miles distant. At the time of the murder
arrangements were being made for Sunder to go to her husband and preparations
for the ceremonial appropriate to such occasions were in the course of
progress. The prosecution case is that this was resented by the appellant who
wanted the girl for himself;
so he went to the husband's village Kalawad
on the night of the 18th/ 19th and murdered him with an axe which the prosecution
say belongs to him and which they say he later produced.
Both Courts hold that the motive is proved;
and that can be accepted.
Next comes the evidence about the sharpening
of the axe on the evening of the 18th at Kana's house in the village Shiva. The
axe was produced in Court and Dewayat (P.W. 5) tells us that it was blunt. Now
there is nothing suspicious or unusual in a villager sharpening a blunt axe
and, as we have pointed out, Meraman (P.W. 11) says that Dewayat was also
sharpening an axe at the same time and place; and Dewayat is one of the other
three against whom suspicion was directed; also, the fact that the axe was
sharpened in this open way in the presence of a number of persons, including
two strangers to the village, (the two Satwara witnesses, P.Ws. 9 and 10),
points to innocence rather than guilt.
But the prosecution does not rely on this
alone. Their witnesses say that when the appellant was asked why he was
sharpening his axe (Dewayat does not seem to have been put a similar question
though he was doing the same thing) he replied that he wanted to offer a green
coconut to Lord Shanker. All the witnesses are agreed that this has no special
significance and that they attributed no sinister meaning to it at the time. It
has acquired significance only in the light of after events.
Even here, there seems to us to be some
danger that what the appellant really said has got mixed up, with what these
witnesses say and, no doubt, honestly believe he said. We say this because
Sunder, P.W. 3, and her mother Vali, P.W. 2 tell us that the appellant came to
the mother that evening and offered her eight annas in lieu of a coconut. It
seems that this is a customary offering given by relatives when a daughter
leaves her parents' home for her father-in-law's place. The appellant is
distantly related to Sunder and so such an offering would be normal, and as it
was made the same evening, apparently shortly after the other incident, we
think there is a strong probability that his remark about the offering of a
1294 coconut had reference to this and was later thought to have reference to a
vow: the sort of mistake that persons reconstructing a crime might easily make
and then honestly believe; and we are the more prone to think that this was
what probably happened because the conduct attributed to the appellant is so
unlike that of a murderer deliberately planning a cold blooded crime while, on
the other band, it is wholly consistent with innocence. A reasonable doubt
arises and the appellant is entitled to its benefit.
Next comes the evidence of Samant, P.W. 16,
who says that be saw the appellant that night on the outskirts of Kalawad where
the murder was committed. He was wearing a false beard and a mask. That of
course is an important piece of evidence but the danger of mistaking the
identity of a man so disguised at night cannot be disregarded, especially as
this witness qualified his statement at the end of his cross-examination by
saying: "The person was just like him".
It is evident to us that his statement about
identity is not based on his recognition of the appellant but on the fact that
he saw a man who looked like the appellant and so, when he found that the
appellant was under suspicion, he inferred that the man must have been the
appellant. But that is the very question that the Court has to decide. The only
fact that this witness can be said to prove is that be saw a man that night
wearing a false beard and mask who looked like the appellant.
Then we come to the recoveries. The false
beard and mask were found buried in the grounds of Dewayat's house and the
appellant is said to have recovered them in the presence of panchas. But those
discoveries are inadmissible in evidence because the police already knew where
they were hidden.
Their information was not derived from the
appellant but from Dewayat (one of the other suspects). The way the police came
to find this out was this. Dewayat says that the appellant confessed the murder
to him and told him that he had gone there wearing a false beard and a mask and
that he had buried these articles 1295 under the Shami tree in the grounds of
Dewayat says"Next the police called me to
go to Kalawad. At that time Raja had been arrested............ I was
interrogated. I spoke about the beard at that time. Then the police came to my
field with Raja".
If Meraman (P. W. 11), read with the Confused
statement of Kana (P.W. 4), is to be believed, Dewayat was also under arrest
either at the time or on the day before. As the SubInspector was not examined,
we are unable to clear this up and so are bound to give weight to the criticism
of the Sessions Judge where he says"However, Dewayat confesses that his
statement was not recorded on the 19th of May 1952 but was recorded on 20-51952
only after he was questioned by the police".
In our opinion, not only is this evidence
about recovery not admissible but the danger that Samant (P.W. 16) mistook
Dewayat, who was also under strong suspicion, or someone else who looked like
the appellant, for the appellant, has not been excluded.
Lastly, there is the recovery of the axe. But
this was not hidden. It was kept behind an earthen jar in the appellant's house
just as an axe might be normally kept in any average household. The only point
of suspicion is that the axe had stains of human blood on it. But the
difficulty we are faced with there is that the extent of the stains and their
position is not disclosed. We have had occasion to comment before on the very
slovenly and ineffective way in which some Chemical Analysers do their duty.
This is another case in which what might otherwise have been a valuable piece
of evidence has to be disregarded. The axe was not recovered till the 21st and
was standing where it could have been handled by other members of the
In any case, villagers frequently have slight
cuts or scratches or a prick from a thorn on their persons and a few drops of
blood could easily be transferred to an article like an axe without anybody
noticing or knowing. The important thing in a case like this, where everything
1296 is now seen to hang on this one fact, would be the extent of the blood and
its position. The postmortem reveals that the injuries were incised and that
the bleeding was profuse. If therefore there was blood all along the cutting
edge and around it, that would have been a strong circumstance; but if there
was only a small smear of blood, say, on the back of the axe and none on or
near the edge, then that would have been a circumstance for complete
exoneration. When everything hangs on this one point, we cannot assume without
proof that stains which might be compatible with either guilt or innocence must
have been of what we might term the guilty kind.
On a careful examination of the evidence in
this case, we are not satisfied that the circumstances disclose "strong
and compelling reasons" to set aside the acquittal.
The appeal is allowed. The conviction and
sentence are set aside and the appellant is acquitted.
VENKATARAMA AYYAR J.-I regret I am unable to
agree with the judgment just delivered.
The appellant belonged to the village of
Katkora, and developed intimacy with an unmarried woman called Sunder in the neighboring
village of Shiva. Subsequently, Sunder was married to one Jetha of Kalawad, a
village about 3 miles distant from Shiva. It had been arranged to take Sunder
to her husband's house on the 19th May 1952, and for that purpose, Sida, the
father of Jetha, had come to Shiva on the 18th. The case of the prosecution was
that the appellant was determined to prevent Sunder from joining her husband,
and with that object he went to Kalawad on the night of the 18th, and killed
Jetha with his axe, when be was asleep.
The murder came to light next morning, and
the matter was reported to the police. The appellant was arrested on 20-51952.
On his information the police recovered from his house at Katkora an axe, and
the panchnama discloses that it then bad stains of blood which was subsequently
found by the Chemical Analyst to be human. The appellant next showed to the
police 1297 a false beard, which was buried under a tree in the village of
Shiva. It is alleged that this was worn by the appellant at the time of the
On 21-5-1952 the police sent the appellant to
the FirstClass Magistrate (P. W. 21), with a letter stating that he wanted to
make a confession. The Magistrate, however, decided to give him time "to
cool down", and put him in judicial lock-up. He then went on duty to
another place, and on his return, recorded the confession of the appellant,
which is as follows:
" I, having gone to his Wadi, have
killed him. I have killed him with axe. I have killed him for the sake of
Sunderbai. Sunderbai is the wife of Jetha. I had illicit connection with her. I
have murdered Jetha Sida with the idea of marrying Sunderbai. I gave him an
axe-blow on the neck. At that time I had put on a tunic and a pair of trousers.
I bad a turban on my head. I had worn artificial beard. After the murder, the
artificial beard buried in the field of Dewanand Mope. I took the axe to my
The appellant retracted this confession
before the Committing Magistrate, as made under police beatings and threats. He
was then sent up to the Sessions Court, Halar, to take his trial, which took
place with the aid of four assessors.
There was no direct evidence that the
appellant had committed the murder. The circumstantial evidence on which the
prosecution sought to establish his guilt consisted of a confession made by him
to the Magistrate, the recovery of the axe and the false beard, and the
existence of strong motive. There was, besides, a considerable body of evidence
that on the 18th May the appellant was haunting the village of Shiva where
Sunder was residing, with an axe in his hand and threats in his tongue. The
assessors were unanimously of the opinion that the appellant was guilty, but
the Sessions Judge disagreed with them, and held that the confession was
neither true nor voluntary, and that though there were strong grounds for
suspecting him, the evidence was not sufficient to convict him, and so
There was an appeal against this judgment by
the 1298 State to the High Court of Saurashtra. The learned Judges, differing
from the Sessions Judge, held that the confession was true and voluntary, that
there was ample corroboration thereof in the evidence, and that even apart from
it, the other facts proved by 'the prosecution were sufficient to establish the
guilt of the appellant. They accordingly set aside the order of acquittal
passed by the Sessions Judge, convicted the appellant under section 302 and
sentenced him to transportation for life. It is against this judgment that the
present appeal by special leave has been brought.
The question is whether having regard to the
principles on which this Court exercises its jurisdiction under article 136,
there are grounds for interference in this appeal.
Those principles are well-settled and may
briefly be recapitulated. Prior to the abolition of the jurisdiction of the
Privy Council, the law of this country did not in general provide for appeals
against judgments of the High Courts in criminal matters. Indeed, the policy of
the legislature as expressed in sections 404 and 430 of the Code of Criminal
Procedure and departing in this respect from that adopted in the Civil
Procedure Code, has been that decisions of courts passed in criminal appeals
should be final and subject to specified exceptions, not open to a further appeal
on facts. So far as judgments of the High Courts are concerned, the limitation
on further appeal imposed by the Indian statutes could not affect the
jurisdiction of the Privy Council to entertain appeals against them in the
exercise of the prerogative of the Crown. That was a power which the Privy
Council possessed in respect of orders passed by the courts all over the
Dominions, and the limits within which the Judicial Committee exercised that
power were thus stated by Lord Watson in re Abraham Mallory Dillett(1):
"The rule has been repeatedly laid down,
and has been invariably followed, that Her Majesty will not review or interfere
with the course of criminal proceedings, unless it is shown that, by a
disregard of (1)  12 A.G. 459, 467.
1299 the forms of legal process, or by some
violation of the principles of natural justice, or otherwise substantial and
grave injustice has been done".
These principles were followed in quite a
number of appeals against judgments of Indian courts in criminal matters. In
Dal Singh v. King-Emperor(1), the Privy Council, stating the practice of the
Judicial Committee in dealing with an appeal in a criminal case., observed:
"The general principle is established
that the Sovereign in Council does not act, in the exercise of the prerogative
right to review the course of justice in criminal cases, in the free fashion of
a fully constituted Court of criminal appeal. The exercise of the prerogative
takes place only where it is shown that injustice of a serious and substantial
character has occurred. A mere mistake on the part of the Court below., as for
example, in the admission of improper evidence, will not suffice if it has not
led to injustice of a grave character. Nor do the Judicial Committee advise
interference merely because they themselves would have taken a different view
of evidence admitted.
Such questions are, as a general rule,
treated as being for the final decision of the Courts below". In Taba
Singh v. Emperor(2) , Lord Buckmaster observed that the responsibility for the
administration of criminal justice rested with the courts in India, and that
the Board would not interfere "unless there has been some violation of the
principles of justice or some disregard of legal principles". In George Gfeller
v. The King(3), which was an appeal from the Supreme Court of Nigeria, Sir
George Rankin observed:
"Their Lordships have repeated ad
nauseam the statement that they do not sit as a Court of Criminal Appeal. For
them to interfere with a criminal sentence there must be something so irregular
or so outrageous as to shock the very basis of justice: per Lord Dunedin in
Mohindar Singh v.
Emperor(4). Cf. Muhammad Nawaz v. Emperor(5)
(1)  L.R. 44 I.A. 187, 140. (2)  I.L.R.
48 Bom. 515.
(3) A.I.R. 1943 P.C. 211. (4)  L.R. 59
I.A. 233, 235.
(5)  L.R. 68 I.A. 126, 129.
164 1300 On these principles, the Privy
council refused in Macrea, Ex parts(1) leave to appeal on the ground of
misdirection to the jury and in Mohindar Singh v. Emperor'(2)on the ground that
a wrong view had been taken of the law.
Thus, the law was well-settled that the Privy
Council would not entertain appeals against judgments in criminal cases, unless
there was an error of . procedure or disregard of legal principles amounting to
a denial of fair trial and resulting in grave injustice. Under the
Constitution, the position of the Supreme Court which has taken t he place of
the Privy Council is this. Its jurisdiction as that of the Privy Council in
respect of criminal appeals may be classed under two categories, cases where a
right of appeal is expressly granted by the Constitution or by the statutes, as
for example, articles 132(1) and 134 (1) of the Constitution or section
411-A(4) of the Code of Criminal Procedure, in which the scope of the appeal
would depend upon the terms of the enactments which confer the right; and
cases' where it is called upon to exercise its powers under article 136, which
corresponds substantially to the prerogative jurisdiction exercised by the Privy
Council with reference to which the practice of the Judicial Committee might
usefully be referred to for indicating the area of interference.
The question was considered by this Court in
Pritam Singh v. The State(3), where the law was thus laid down:
"On a careful examination of article 136
along with the preceding article, it seems clear that the wide discretionary
power with which this Court is invested under it is to be exercised sparingly
and in exceptional cases only .... The Privy Council have tried to lay down
from time to time certain principles for granting special leave in criminal
cases, which were reviewed by the Federal Court in Kapildeo v. The King(4). It
is sufficient for our purpose to say that though we are not bound to follow
them too (1)  L.R. 20 I.A. 90. (2)  L.R. 59 I.A. 233, 235.
(3)  S.C.R. 458, 458. (4) A.I R. 1950
1301 rigidly since the reasons constitutional
and administrative, which sometimes weighed with the Privy Council, need not
Weigh with us, yet some of those -principles are useful as furnishing in many
cases a sound basis for invoking the discretion of this Court in granting
Generally speaking, this Court will not grant
special leave, unless it is shown that exceptional and special circumstances
exist, that substantial and grave injustice has been done and that the case in
question presents features of sufficient gravity to warrant a review of the
decision appealed against".
The preceding article referred to in the
opening passage is clearly article 134. Article 134(1) confers a right of
appeal to this Court in certain cases, in terms unqualified, on questions both
of fact and of law, and if the scope of an appeal under article 136 is to be
extended likewise to questions of fact, then article 134(1) would become
superfluous. It is obvious, that the intention of the Constitution in providing
for an appeal on facts under articles 134(1) (a) and (b) was to exclude it
under article 136, and it strongly supports the conclusion reached in Pritam
Singh v. The State(1) that like the Privy Council this, Court would not
function as a further court of appeal on facts in criminal cases.
Having regard to the principles enunciated in
this decision., the question is whether there are sufficient grounds for
interfering with the judgment of the High Court in the present appeal. The
point which the learned Judges had to decide in the appeal was whether it was
the appellant who had murdered Jetha. That is a pure question of fact turning
on appreciation of evidence. -The High Court has gone into the matter fully,
examined the entire evidence exhaustively, and in a judgment which is as
closely reasoned as it is elaborate, has come to the conclusion that the guilt
of the appellant has been established beyond all reasonable doubt. Does that
decision call for our interference in special appeal?.No, unless this Court is
to 'function as a court of appeal on facts.
(1)  S.C.R. 453, 458.
1302 But then, it is argued that the appeal
before the High Court was one against acquittal, that such an appeal was
subject to the limitation that there should be compelling reasons for reversing
an order of acquittal, and that it would be open to this Court in special
appeal to consider whether that limitation bad been duly observed. On this
contention, two questions arise for determination: (1) what are the powers of a
court which hears an appeal against an order of acquittal? And (2) what are the
grounds on which the decision of that court ban be reviewed by this Court under
article 136? The right to appeal against an order of acquittal is conferred on
the State by section 417 of the Code of Criminal Procedure, and is in terms
Nevertheless, the view was taken at one time
in some of the decisions that appeals against acquittals were in a less
favoured position than appeals against convictions, and that an order of
acquittal should not be interfered with in appeal except "where through
the incompetence, stupidity or perversity of certain tribunal such unreasonable
or distorted conclusions have been drawn from the evidence so as to produce a
positive miscarriage of justice", or were "the lower court has so
obstinately blundered or gone wrong as to produce a result mischievous at once
to the administration of justice and the interests of the public".
Vide Empress v. Gayadin(1), Queen-Empress v.
Robinson(2), Deputy Legal Remembrancer v. Amulya Dwan(3) and King-Emperor v. U
San Win(4). In Sheo Swarup v.-King-Emperor(5), the question was raised for
determination by the Privy Council whether there was any legal basis for the
limitation which the above decisions had placed on the right of the State to
appeal under section 417. Answering it in t e negative, Lord Russell observed
that there was "no indication in the Code of any limitation or restriction
on the High Court in the exercise of its powers as an appellate tribunal",
that no distinction was drawn (1)  I.L.R. 4 All. 148. (2)  I.L.R.
(3)  18 C.W.N. 666. (4)  I.L.R.
10 Rang. 312, (5) L.R. 61 I.A. 398, 403, 404.
1303 "between an appeal from an order of
'acquittal and anappeal from a conviction", and that "no limitation
should be placed upon that power unless it be found expressly stated in the
Code".. He went on to remark at page 404 that, "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 witness, (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 bad the advantage
of seeing the witnesses".
These observations, however, do not mean that
the scope of appeals against acquittals is different from that of other
appeals. They merely embody the principles applicable to all appeals, civil and
criminal, to appeals alike against conviction and acquittal. Thus, if A files a
suit on a promissory note against B and the latter denies execution, the burden
is on the plaintiff to establish its genuineness.
If the trial Judge does not accept the
evidence adduced by him and dismisses his suit and he appeals, he has the
burden still on him to prove on the evidence adduced that the -promissory note
is genuine, and in discharging that burden he has to show that the judgment
appealed against is clearly wrong. In Naba Kishore Mandal v. Upendra Kishore
Mandal(1), Lord Buckmaster stated:
"The only further observation that their
Lordships desire to make is to call attention once more to the fact that in
appeals the burden of showing that the judgment appealed from is wrong lies
upon the appellant. If all he can show is nicely balanced calculations which
lead to the equal possibility of the judgment on either the one side or the
other being right, he has not succeeded".
Adapting these observations to criminal
trial, when the State appeals against an order of acquittal, it (1)  42
M.L.J. 253, 257 (P.C.).
1304 has to establish on the evidence that
the accused is guilty, and to establish it, it has to satisfy the court that
the judgment of the trial court is erroneous. The oft-repeated observation that
on acquittal the presumption of innocence becomes reinforced is merely this
principle stated in terms of criminal law. Likewise, the weight to be attached
by an appellate court to a finding of the trial court based upon appreciation
of oral evidence is the same whether it is given in a civil litigation or a
criminal trial. Dealing with the position of an appellate court hearing a civil
appeal, the Privy Council observed in Bombay Cotton Manufacturing Co. v.
"It is doubtless true that on appeal the
whole case, including the facts, is within the jurisdiction of the Appeal
Court. But generally speaking, it is undesirable to interfere with the findings
of fact of the Trial Judge who sees and hears the witnesses and has an opportunity
of noting their demeanour, especially in cases where the issue is simple and
depends on the credit which attached to one or other of conflicting
witnesses........ In making these observations their Lordships have no desire
to restrict the discretion of the Appellate Courts in India in the
consideration of evidence".
It is clearly these principles that Lord
Russell had in mind when he made the observations at page 404 in Sheo Swarup v.
King-Emperor2') quoted above, and that will be clear from the observation next
"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 recognized in the
administration of justice".
The scope of the decision in Sheo Swarup v.
King Emperor(2) with special reference to the observations discussed above was
thus explained by the Privy .Council in Nur Mohammad v. Emperor(3):
"Their Lordships were referred, rightly
enough to the decision of this Board in the case in Sheo (1)  L.R. 42
I.A. 110; 118. (2)  L.R. 61 I.A.
(3) A.I.R.1945 P.C. 151.
1305 Swarup v. King-Emperor(1), and in
particular to the passage at p. 404 in the judgment delivered by Lord Russell.
Their Lordships do not think it necessary to read it all again, but would like
to observe that there really is only one principle, in the strict use of the
word, laid down there; that is that the High Court has full power to review at
large all 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
These authorities establish beyond all
controversy that an appeal against acquittal under section 417 stands, as
regards the powers of an appellate court, on the same footing as appeals
If that is the true scope of an appeal under
section 417, where then does the doctrine of "compelling reasons"
come in? And how do we fit it among the powers of a court under that section?
The words compelling reasons" are not a legislative expression. They are
not found in section 417.
As far as I have been able to discover, it
was first used in Surajpal Singh and others v. The State(2), wherein it was
"It is well established that in an
appeal under section 417 of the Criminal Procedure Code, the High Court has
full power to review the evidence upon which the order of acquittal was
founded, but it is equally well-settled that the presumption of innocence of
the accused. is 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 can be reversed only for very substantial and compelling
Do the words "compelling reasons"
in the above passage import a limitation on the powers of a court hearing an
appeal under section 417 not applicable to a court hearing appeals against
conviction? If they do, then it is merely the old doctrine that appeals against
acquittal are in a less favoured position, dressed in a new garb, and the
reasons for rejecting it as unsound are as powerful as those which found favour
with the Privy Council in Sheo Swarup v. King-Em(1)  L.R. 61 I.A. 398.
(2)  S.C.R. 193, 201.
1306 peror(1) and Nur Mohammad v. Emperor(2).
But it is probable that these words were intended to express, as were the
similar words of Lord Russell in Sheo Swarup v. King Emperor(1), that the court
hearing an appeal under section 417 should observe the rules which all
appellate courts should, before coming to a conclusion different from that of
the trial court. If so understood, the expression "compelling reason
s" would be open to no comment. Neither would it be of any special
significance in its application to appeals against acquittals any more than
appeals against conviction. But the expression has been quoted in later
judgments, especially of the courts below, as if it laid down that in appeals
against acquittal, the standard of proof required of the appellant was far
higher than what the law casts on appellants in other appeals, and as the words
"compelling reasons" are vague and indefinite to a degree, the result
has not seldom been that even when Judges hearing appeals under section 417
were convinced of the guilt of the accused, they refrained from setting aside
the order of acquittal owing to the dark and unknown prohibition contained in
the expression. That is the impression which I have formed in the appeals which
have come before me. in this Court. There is always a danger in taking a
phrase, attractive and telling-in its context, out of it, and erecting it into
a judicial formula as if it laid down a principle universal in its application.
And this danger is all the greater when the phrase is of undefined import, and
relates to appreciation of evidence. It is in the interests of the public that
crimes should be punished, and it is with this object that section 417 confers
on the State a right to appeal against acquittal. To fetter this right through such
expressions as "compelling reasons" would not merely be to legislate
but to defeat the plain intention of the legislature that an accused in an
appeal against acquittal should. have only those rights which the State in an
appeal against conviction or a respondent in a civil appeal has, and that he is
to enjoy no special protection.
(1)  L.R. 61 I.A. 398. (2) A.I.R. 1945
1307 The fundamental objection to regarding
the expression "compelling reasons" as a rigid formula governing the
decision of an appeal under section 417 is that it puts a judgment of
acquittal, however rendered, in a position of vantage which the law did not
accord to it, and throws around the accused who gets an order of acquittal in
the trial court a protection which the law did not intend to give him. In my
judgment, this is a situation in which great mischief must result, and the
interests of the public must suffer' If the expression "compelling
reasons" does not impose a restriction on the powers of a court hearing an
appeal under section 417, and if its true scope is to guide it in arriving at a
decision, the question whether this Court can interfere with that decision on
the ground that it is erroneous presents no difficulty. The decision would then
be one on a question of fact depending upon the appreciation of evidence, and
this court cannot, on the principles enunciated in Pritam Singh v. The State(1)
interfere with it. This position is, in fact, concluded by the decisions in
Sheo Swarup v. King-Emperor(2) and Nur Mohammad v. Emperor(3). In Sheo Swarup
v. King-Emperor(2), the Sessions Judge bad characterised the prosecution
witnesses as liars, and disbelieving their evidence had acquitted the accused.
On appeal, the High Court reviewed the
evidence, and differing from the trial court as to the weight to be attached to
it, convicted the accused. Declining to interfere with this judgment, the Privy
Council observed that even though there was no express mention in the judgment
of the High Court that it had considered all the particulars which an appellate
court should consider in deciding an appeal, there was "no reason to think
that the High Court had failed to take all proper matters into consideration in
arriving at their conclusions of fact". In Nur Mohammad v. Emperor(3), the
judgment of the High Court did not disclose that it had considered the matters
mentioned by Lord Russell at page 404 (1)  S.C.R. 453. (2)  L R. 61
I.A. 398, (3) A.I.R 1945 P.C. 151.
165 1308 in Sheo Swarup v. King-Emperor(1).
Nevertheless, the Privy Council dismissed the appeal observing:
"In the present case the High Court
judgment shows that they have been at pains to deal in detail with the reasons
given by the Sessions Judge for disbelieving the group of witnesses, the
Patwari and the other three alleged eyewitnesses. They have dealt in detail
with them, showing on the face of their judgment that there is no necessity to
presume in this case that they have not done their duty...." These
decisions are authorities for the position that when in an appeal under section
417 the court considers the evidence and comes to its own conclusion the
findings recorded by it are not, even when they result in a reversal of the
order of acquittal, open to interference in special appeal. Different
considerations would have arisen if the law bad provided a further appeal on
facts against those orders of reversal, in which case the appreciation of the
evidence by the appellate court would be a matter open to review in the
superior court. That, as already stated, would be the position in an appeal
under articles 132 (1) and 134(1) (a) and (b), but where, as in the present, no
appeal on facts is provided, the decision of the High Court is not open to
review by this Court under article 136 on the ground that there were no
compelling reasons for the learned Judges to reverse an order of acquittal.
This is sufficient to entail the dismissal of
But, having gone through the evidence, I am
of opinion that even on the merits the decision of the High Court is correct.
The evidence against the appellant is wholly circumstantial, and consists
mainly of (1) the existence of a strong motive, (2) the conduct of the
appellant on the day when the murder was committed, (3) the recovery of a bloodstained
axe and a false beard at the instance of the appellant, and (4) a confession
made by him 'before the Magistrate, P.W. 21, on 3-6-1952. Taking the above
items seriatim, it is the case of the prosecution that the appellant was living
on terms of intimacy with Sunder, and as she was to be taken on the 19th May
1952 to Kalawad to join her husband, he wanted to do away with him. The
appellant admitted that he had illicit connection with Sunder for some years,
and the Sessions Judge also found, basing himself on the prosecution evidence,
that the appellant was very much agitated on the night of the 18th. A number of
witnesses deposed that they saw him on 18-5-1952 at Shiva sharpening his axe,
and that when questioned, he stated that be was going to offer a green coconut
to Mahadevji, "can expression " say the learned Judges "which in
common parlance means sacrifice of a head". The appellant denied that he
went to Shiva on the 18th, but his statement was, disbelieved by the Sessions
Judge who was impressed by the quality and number of the prosecution witnesses,
and both the courts have concurred in accepting their evidence on this point.
As for the recovery of the axe, the appellant
admitted it, but he stated in his examination under section 342 that there was
no blood on it when he showed it to the police.
The Sessions Judge, was not prepared to
accept this statement and observed:
"Accused admits that this is his axe. In
light of chemical analysis, there is no doubt that there were stains of human
blood on the axe. It is also mentioned in the Pancbnama, Ex. 21 itself that the
Panch had suspected that there were marks of human blood on this axe".
But all the same, he discounted the value of
this evidence, because according to him, in view of certain circumstances
"the presence of human blood on the axe is by no means conclusive",
and that "at best it raises a suspicion against the accused". Those
circumstances are three: Firstly, the panch who witnessed the recovery at Katkora
belonged to Kalawad, and the criticism is that a local panch ought to have been
got to witness the same. The learned Judges of the High Court did not think
much of this criticism, as the recovery at Katkora had to be made in pursuance
of the statement given by the appellant at Kalawad, 1310 and the police might
have reasonably thought that the same panch should be present at both the
places. As the Sessions Judge has accepted the evidence of the panch that there
were blood stains at the time of the recovery of the axe, his criticism on this
point lacks substance. Secondly, though the recovery was made on 21-5-1952, it
was sent to the medical officer for report only on 27-5-1952, and the delay is
suspicious. It is difficult to follow this criticism.
When once the conclusion is reached that
there was blood on the axe when it was recovered, this criticism has no meaning
unless it is intended to suggest that the police required some time to wash the
blood which was on the axe at the, time of its recovery and to substitute human
blood therefore. There is nothing in the evidence to support a suggestion so
grotesque, and as observed by the learned Judges, if the police wanted to
substitute blood, they would not have taken so much time over it.
Thirdly, in despatching the blood to the
Chemical Analyst, the medical officer sent the parcel containing the blood
scrapings to the railway station, not through his own peon or the compounder in
the hospital but through the local police, and that, according to the Sessions
Judge, is a suspicious circumstance. As the parcel was received intact by the
Chemical Analyst at Bombay, it is difficult to see what the point of the
criticism is. The Sessions Judge himself observes:
"I do not believe that the police have
intercepted this parcel and they deliberately sent an axe with human blood.
However, there is no doubt that the procedure
adopted by the doctor is wrong, and is capable of mischief".
It has not been explained and it is not
possible to divine what that mischief could have been in this case. And who
could have been the mischief-maker unless it be the police? The Sessions Judge
stated that be did not believe the suggestion made against the police, but that
nevertheless is the assumption underlying his comment. "Anxious to wound,
afraid to strike" would appropriately describe the situation. The learned
Judges disagreed with the reasoning of 1311 the Sessions Judge, and held that
as the appellant had admitted the recovery of the axe and as there was human
blood on it at that time, it was clear and cogent evidence pointing to his
guilt. I am unable to find any answer to this reasoning.
Pausing here, it will be seen that in
discussing the question of the recovery of the blood-stained axe, as indeed
throughout the judgment, the learned Sessions Judge has taken up an, attitude
of distrust towards the police for which it is difficult to find any
justification in the evidence-an attitude which, I regret to say, is becoming a
growing feature of judgments of subordinate Magistrates.
When at the trial, it appears to the court
that a police officer has, in the discharge of his duty, abused his position
and acted oppressively, it is no doubt its clear duty to express its stern
disapproval of his conduct. But it is equally its duty not to assume such
conduct on the part of the officer gratuitously and as a matter of course, when
there is, as in this case, no reasonable basis for it in the evidence or in the
circumstances. The presumption that a person acts honestly applies as much in favour
of a police officer as of other persons, and it is not a judicial approach to
distrust and suspect him without good grounds therefore. Such an attitude could
do neither credit to the magistracy nor good to the public. It can only run
down the prestige of the police administration.
It is the case of the prosecution that the
appellant unearthed a false beard, which he had buried underneath a shami tree
in Shiva, and that he had worn it at the time of the murder. The appellant did
not deny the recovery, but stated that it was not he that had uncovered it but
the jamadar. Both the courts below have accepted the version of the prosecution
as true, but while the Sessions Judge held that it was not sufficient to
implicate the appellant, the learned Judges held otherwise. P.W. 16 deposed
that he saw the appellant at midnight on the 18th May on the outskirts of
Kalawad wearing a false beard, and the comment of the Sessions Judge on this
" I do not see bow this evidence will
prove the 1312 prosecution case beyond reasonable doubt. At best, it will
suffice to raise suspicion against the accused". But if the beard was
discovered by the appellant, then surely it is a valuable link in the chain of
evidence against him.
Then we come to the confession made by the
appellant to P.W. 21. The Magistrate has deposed that he had satisfied himself
that it was voluntary, before he recorded it. The Sessions Judge did not
discredit his testimony, but was of opinion that in view of certain
circumstances the confession was not voluntary. Now, the facts relating to this
matter are these, The appellant was, as already stated, arrested on the 20th
May and discoveries of the axe and the false beard were made through him, and
on the 21st he was sent to the Magistrate with a letter that he desired to make
a confession. The Magistrate has given evidence that he did not record the
confession at once, as he wanted the appellant "to cool down", and
accordingly gave him ten days to reflect, and committed him to judicial
lock-up. There is nothing improper in this, and indeed ' it is a commendable
precaution for ensuring that the confession was made voluntary. From 21-5-1952
to 3-6-1952 the appellant continued in judicial lock-up, and this is a
circumstance which normally should negative the possibility of there having
been a threat or inducement. But the Sessions Judge declined to attach any
weight to it, because both the police lock-up and the judicial lock-up were
situated in the same compound, separated by a distance of 20 feet, and were
guarded by the same police officers, and though the judicial lockup had its own
warder and clerk jailor, they kept watch only during daytime, and therefore
even though the police could have had no access inside the lock-up, they had
"every opportunity to threaten and bully the accused". The Sessions
Judge accordingly held that the confession was not voluntary. On appeal, the
learned Judges came to a different conclusion. They considered that the
possibility of threats having been uttered through the bars was too remote and
unsubstantial to form the 'basis for any 1313 conclusion, and that all the
circumstances indicated that the confession was voluntary. These are the
salient points that emerge out of the evidence.
The position may be thus summed up:
(1) No special weight attaches to the
findings of the Sessions Judge on the -around that they are based on the
evidence of witnesses whom he had the advantage of seeing in the box, and
believed. The oral evidence was all on the side of the prosecution, and that
was substantially accepted by the Sessions Judge. His judgment is based on the
probabilities of the case, and of them, the learned Judges were at least as
competent to judge, as he.
(2) The finding of the Sessions Judge in so
far as it related to the recovery of bloodstained axe was clearly erroneous, as
it did not follow on his reasoning.
(3) As regards the confession, the conclusion
of the Sessions Judge rests on nothing tangible, and is largely coloured by a
general distrust of the police, not based on evidence or justified by the
(4) The learned Judges were of the opinion
that even excluding the confession, the other evidence in the case was
sufficient to establish the guilt of the appellant.
(5) All the four assessors were of the
opinion that the appellant was guilty.
Now, returning to the two questions which
have formed the basis of the preceding discussion, (1) what is it that the High
Court has to do in exercise of its powers under section 417, having regard to
the findings reached by it and set out above, and how does the doctrine of
"compelling reasons" bear upon it? (2) What are the grounds on which
we can interfere with its decision? A court hearing an appeal under section 417
might be confronted with three possibilities: (i) It might come to the same
conclusion as the trial court on the questions in issue, in which case, of
course, it should dismiss the appeal; (ii) It might consider that the evidence
was not clear and conclusive one way or the other, in which case its duty 1314
as an appellate court would be not to interfere with the judgment appealed
against; and (iii) it might come to a conclusion on an appreciation of the
evidence opposite to that reached by the court of first instance, in which case
it would clearly be its duty in exercise of its powers under section 417 to set
aside the order of acquittal. Wherein does the theory of "compelling
reasons" come in the scheme? There is no need for it in the second
category, because even apart from it, the same result must, as already stated,
follow on the principles applicable to all courts of appeal.
Then, there remains the third category of
cases. If the High Court comes to the conclusion on an appreciation of the
evidence that the appellant is guilty, has it, nevertheless, to confirm the
order of acquittal on the basis of this theory? Surely not, as that would
render the right conferred by section 417 illusory. Thus, the doctrine of
"compelling reasons" would appear to have use only as a guide to the
appellate court in determining questions of fact. It has no independent value
as bearing on its powers under section 417. If that is the true position, it
follows on the principles laid down in Sheo Swarup v. KingEmperor(1) and Nur
Mohammad v. Emperor(2) and in Pritam Singh v. The State(3) that this Court
cannot interfere with the orders passed under section 417 merely on the ground
that the findings of fact were not justified, having regard to the doctrine of
In my opinion, this appeal ought to be
BY THE COURT.-In accordance with the Judgment
of the majority this Appeal is allowed. The conviction and sentence are set
aside and the Appellant is acquitted.
(1)  L.R. 61 I.A.398. (2) A.I.R. 1945
(3)  S.C.R. 453.