State of Goa Vs.
Pandurang Mohite  INSC 2122 (8 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 598-599 of 2002
State of Goa ...Appellant Versus Pandurang Mohite ...Respondent
Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of a Division Bench of Bombay High Court at
Goa directing acquittal of the respondent. The accused faced trial for offences
punishable under Section 302, 392 and 201 of the Indian Penal Code, 1860 (in
short the `IPC'). The learned Additional Sessions Judge, Mapusa found the
accused guilty of offence punishable under Sections 302, 392 and 201 IPC and
convicted him to undergo imprisonment for life, seven years and one years with
different fines with default
appeals the High Court found the evidence to be inadequate and directed
version in a nutshell is as follows:
Mahadeshwar and his son Shyam Mahadeshwar (hereinafter referred to as the
`deceased') had gone for the annual fair to sell sweets at the village Zarme.
On 1.3.1998, in the morning they were returning home. At about 7.30 A.M. when
they reached at village Valpoi, Shyam told his father that he would stay behind
and father should proceed ahead to his house and that he would follow him after
some time. So, Chandrakant left behind Shyam at Valpoi and went to his Village
Till 1.00 p.m. on
that day Shyam did not return home. So he started searching for Shyam.
Ultimately, on 2.3.1998, at about 8.30 a.m. he lodged report at the Valpoi
Police Station that Shyam was missing. On the basis of that report, the missing
case No.6/98 was registered at the police station.
On 2.3.1998 itself
when Chandrakant was at Valpoi, Ramjatan Vishwakarma (PW3) told him that he had
taken Shyam and the accused to 2 Hedode Bridge on the previous day at about
7.15 a.m, and he had left them there. Ramjatan then took Chandrakant to the
house of the accused, but the accused was not there. The matter was also
reported to the police. The police visited the house of the accused on 2.3.98
at about 11 a.m., but the accused was not there.
On 2.3.1998, at about
noon time, when Chandrakant returned home, he saw that the accused was at his
home and accused told him that Shyam would be returning home by evening.
Thereafter, the police came there. The accused was taken to the police station.
There was one bicycle. It was seized by the police.
On 2.3.1998 itself,
the brother of the accused i.e. Baburao as well as brother-in-law of the
accused i.e. Jaidev Paryekar were also called at the police station and
inquiries were made with them. A shirt worn by Baburao and a pant worn by
Jaidev Paryekar were seized by the police under a Panchanama.
The accused was
interrogated and he made a statement that he would point out the place where
dead body of Shyam was lying. Then the police, panchas and the accused went by
police jeep to Hedode Bridge. From there, the accused took them in a jungle at
distance of about one and half kilometre and pointed out to the dead body of
the deceased. Since it was night time, Inspector Dessai who had taken the
accused and the panchas to that place, could not prepare the panchanama of the
dead body and therefore, he kept some policemen to keep watch on the dead body
and returned to the police station.
On returning to the
police station, inspector Dessai himself lodged F.I.R. at about 1.30 a.m. on
3.3.1998. He gave all the details as to how the dead body was recovered and
alleged that the accused had committed the offence of murder of Shyam and had
taken away cash and other valuables from the body of the deceased. So, crime
was registered for the offences punishable under Sections 302, 392 and 201 of
I.P.C. It was crime No.18/98.
himself took up the investigation. In the morning of 3.3.1998, Inspector Dessai
again went to the place in the jungle where dead body was lying. He prepared
panchanama of the place of the offence and from there he recovered a pair of
chapples and a knife. He also prepared inquest panchanama of the dead body. He
found that there were some injuries on the person of the deceased and there
were also burn injuries. He sent the dead body for post mortem examination to
Goa Medical College at Bambolim.
Dr. Silvano Dias
Sapeco conducted post mortem examination on the dead body and gave his opinion
that the cause of death was due to post mortem burns.
completion of investigation charge sheet was filed and the accused faced trial.
There was no eye witness to the occurrence.
rested on circumstantial evidence. The prosecution rested its version on the
last seen theory contending that the accused and the deceased were last seen
together. For that purpose it relied on the evidence of PWs 3 & 8. As noted
above the trial court placed reliance on the evidence of PWs 3 & 8 and
directed conviction which in appeal was set aside by the High Court.
counsel for the appellant-State submitted that the High Court should not have
discarded the evidence of PWs 3 & 8. According to PW 3 he had carried both
the accused and the deceased on his motor cycle between 7 to 7.15 AM.
Thereafter the accused was seen alone between 9.15 to 9.30 AM. PW 8 saw the
accused going near the place of occurrence between 9 AM to 9.30 AM and had carried
him on his motor cycle. This, according to learned counsel for the appellant,
was sufficient to fasten the guilt on the accused.
counsel for the respondent on the other hand supported the judgment of the High
Court. It was submitted that keeping in view parameters relating to appeal
against judgment of acquittal, this appeal is sans merit.
has been consistently laid down by this Court that where a case rests squarely
on circumstantial evidence, the inference of guilt can be justified only when
all the incriminating facts and circumstances are found to be incompatible with
the innocence of the accused or the guilt of any other person. (See Hukam Singh
v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v.
State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR
1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder
Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of
M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the
guilt of the accused is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact sought to be
inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954
SC 621), it was laid down that where the case depends upon the conclusion drawn
from circumstances the cumulative effect of the circumstances must be such as
to negative the innocence of the accused and bring the offences home beyond any
may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based
on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature.
Moreover, all the
circumstances should be complete and there should be no gap left in the chain
of evidence. Further the proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally inconsistent with his
Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down
that when a case rests upon circumstantial evidence, such evidence must satisfy
the following tests:
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
circumstances, taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probability the crime was
committed by the accused and none else; and (4) the circumstantial evidence in
order to sustain conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent
with his innocence."
State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out
that great care must be taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the hypothesis
Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt, (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted".
is no doubt that conviction can be based solely on circumstantial evidence but
it should be tested by the touch-stone of law relating to circumstantial
evidence laid down by the this Court as far back as in 1952.
Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to
remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in
the first instance be fully established and all the facts so established should
be consistent only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability the act must
have been done by the accused."
reference may be made to a later decision in Sharad Birdhichand Sarda v. State
of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in prosecution cannot be cured by
false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence, must be fully
established. They are:
10 (1) the
circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned `must' or `should' and not `may be'
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances
should be of a conclusive nature and tendency;
(4) they should
exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused."
aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180),
State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and Kusuma Ankama
Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)
far as the last seen aspect is concerned it is necessary to take note of two
decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was
noted as follows:
11 "22. The
last seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person other than the accused
being the author of the crime becomes impossible. It would be difficult in some
cases to positively establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons coming in between
In the absence of any
other positive evidence to conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a conclusion of guilt in those
cases. In this case there is positive evidence that the deceased and the
accused were seen together by witnesses PWs. 3 and 5, in addition to the
evidence of PW-2."
Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted
last-seen theory, furthermore, comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any person other than
the accused being the author of the crime becomes impossible. Even in such a
case the courts should look for some corroboration".
(See also Bodh Raj v.
State of J&K (2002(8) SCC 45).)"
similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC
438] and Kusuma Ankama Rao's case (supra).
is interesting to note that PWs 3 & 8 claimed to have seen the accused at
the same time and to have carried him in the motor cycle which itself is
impossibility. Additionally neither PW 3 nor PW 8 claimed to have seen the
other witness along with the accused at the relevant point of time.
The High Court
noticed that PW 3 Ramjathan stated that on 1.3.1998 he had taken the accused
and the deceased to Hedode Bridge and he was available in the police station on
2.3.1998 at 11 PM. The High Court found it strange that his statement was not
recorded on that day. It rejected the stand of the learned counsel for State
that the crime was registered at about 1.30 AM on 3.3.1998 and thereafter the
investigation started and therefore, statement of PW 3 was recorded afterwards.
In ordinary circumstances it could have been accepted as sufficient
explanation. Strangely, the police claimed to have seized the bicycle of the
accused before registration of the crime and to have recorded his statement as
an accused. According to the prosecution on the basis of the aforesaid
statement seizure was made. Not only that, the alleged memorandum of statement
of the accused was prepared on 2.3.1998 and thereafter as per the prosecution
the accused took them to the junglewhere dead body was lying and discovery
panchnama was *-also prepared on 2.3.1998. The discovery panchnama is Exhibit
6/A which was marked by PW 6. The signature of the accused was obtained as an
accused. In other words on 2.3.1998 police was treating the respondent as an
accused and had started investigation. That being so there was no difficulty in
recording the statement of PW 3 on 2.3.1998.
is proper to consider and clarify the legal position regarding appeal and
acquittal. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure,
1973 (hereinafter referred to as "the present Code") deals with
appeals. Section 372 expressly declares that no appeal shall lie from any judgment
or order of a criminal court except as provided by the Code or by any other law
for the time being in force. Section 373 provides for filing of appeals in
certain cases. Section 374 allows appeals from convictions.
Section 375 bars
appeals in cases where the accused pleads guilty.
Likewise, no appeal
is maintainable in petty cases (Section 376). Section 377 permits appeals by
the State for enhancement of sentence. Section 378 confers power on the State
to present an appeal to the High Court from an order of acquittal. The said
section is material and may be quoted in extenso:
"378(1) Save as
otherwise provided in sub-section (2) and subject to the provisions of
sub-sections (3) and (5),- (a) the District Magistrate may, in any case, direct
the Public Prosecutor to present an Appeal to the Court of Session from an
order of acquittal passed by a Magistrate in respect of a cognizable and
(b) the State
Government may, in any case, direct the Public Prosecutor to present an Appeal
to the High Court from an original or appellate order of an acquittal passed by
any Court other than a High Court [not being an order under clause (a)] or an
order of acquittal passed by the Court of Session in revision.
(2) If such an order
of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to
make investigation into an offence under any Central Act other than this Code,
[the Central Government may, subject to the provisions of sub- section (3),
also direct the Public Prosecutor to present an Appeal-- (a) to the Court of
Session, from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court
from an original or appellate order of an acquittal passed by any Court other
than a High Court [not being an order under clause (a)] or an order of
acquittal passed by the Court of Session in revision.
(3) No Appeal to the
High Court under sub-section (1) or sub-section (2) shall be entertained except
with the leave of the High Court.
(4) If such an order
of acquittal is passed in any case instituted upon complaint and the High
Court, on an application made to it by the complainant in this behalf, 15
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)."
Sections 379-380 cover special cases of appeals, other sections lay down
procedure to be followed by appellate courts.
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.
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.
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.
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
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.
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 19
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
His Lordship, then
proceeded to observe: (IA p.404) "Sections 417, 418 and 423 of the Code
give to the High Court full power to review at large the evidence upon which
the order of acquittal was founded, and to reach the conclusion that upon that
evidence the order of acquittal should be reversed. No limitation should be
placed upon that power, unless it be found expressly stated in the Code."
Committee, however, cautioned appellate courts and stated: (IA p.404) "But
in exercising the power conferred by the Code and before reaching its
conclusions upon fact, the High Court should and will always give proper weight
and consideration to such matters as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of innocence in favour of the
accused, a presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate court in disturbing a finding of
fact arrived at by a judge who had the advantage of seeing the witnesses. To
state this, however, is only to say that the High Court in its conduct of the
appeal should and will act in accordance with rules and principles well known and
recognised in the administration of justice."
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.
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
the decision of the High Court and following the proposition of law in Sheo
Swarup (supra), a six-Judge Bench held as follows:
"6. It must be
observed at the very outset that we cannot support the view which has been
expressed in several cases that the High Court has no power under Section 417,
21 Criminal Procedure Code, to reverse a judgment of acquittal, unless the
judgment is perverse or the subordinate court has in some way or other
misdirected itself so as to produce a miscarriage of justice."
Surajpal Singh v. State (1952 SCR 193), a two-Judge Bench observed that it was
well established that in an appeal under Section 417 of the (old) Code, the
High Court had full power to review the evidence upon which the order of
acquittal was founded. But it was equally well settled that the presumption of
innocence of the accused was further reinforced by his acquittal by the trial
court, and the findings of the trial court which had the advantage of seeing
the witnesses and hearing their evidence could be reversed only for very
substantial and compelling reasons.
Ajmer Singh v. State of Punjab (1953 SCR 418) the accused was acquitted by the
trial court but was convicted by the High Court in an appeal against acquittal
filed by the State. The aggrieved accused approached this Court. It was
contended by him that there were "no compelling reasons" for setting
aside the order of acquittal and due and proper weight had not been given by
the High Court to the opinion of the trial court as regards the credibility of
witnesses seen and examined. It was also commented that the High Court
committed an error of law in observing that "when a strong `prima facie'
case is made out against an accused person it is his duty to explain the
circumstances appearing in evidence against him and he cannot take shelter
behind the presumption of innocence and cannot state that the law entitles him
to keep his lips sealed".
contention, this Court said:
think this criticism is well founded. After an order of acquittal has been made
the presumption of innocence is further reinforced by that order, and that
being so, the trial court's decision can be reversed not on the ground that the
accused had failed to explain the circumstances appearing against him but only
for very substantial and compelling reasons."
34. In Atley v. State of U.P. (AIR 1955 SC 807) this Court said:
"In our opinion,
it is not correct to say that unless the appellate court in an appeal under
Section 417, Criminal Procedure Code came to the conclusion that the judgment
of acquittal under appeal was perverse it could not set aside that order.
23 It has been laid
down by this Court that it is open to the High Court on an appeal against an
order of acquittal to review the entire evidence and to come to its own
conclusion, of course, keeping in view the well-established rule that the
presumption of innocence of the accused is not weakened but strengthened by the
judgment of acquittal passed by the trial court which had the advantage of
observing the demeanour of witnesses whose evidence have been recorded in its
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."
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
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 appellate court's approach to a case in disposing of such an
appeal; and (3) the different phraseology used in the judgments of this Court,
such as, (i) `substantial and compelling reasons', (ii) `good and 25
sufficiently cogent reasons', and (iii) `strong reasons' are not intended to
curtail the undoubted power of an appellate court in an appeal against
acquittal to review the entire evidence and to come to its own conclusion; but
in doing so it should not only consider every matter on record having a bearing
on the questions of fact and the reasons given by the court below in support of
its order of acquittal in its arriving at a conclusion on those facts, but
should also express those reasons in its judgment, which lead it to hold that
the acquittal was not justified."
in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405, the point was raised
before a Constitution Bench of this Court. Taking note of earlier decisions, it
was observed as follows:
"17. In some of
the earlier decisions of this Court, however, in emphasising the importance of
adopting a cautious approach in dealing with appeals against acquittals, it was
observed that the presumption of innocence is reinforced by the order of
acquittal and so, `the findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence can be reversed only for very
substantial and compelling reasons': vide Surajpal Singh v.
State (1952 SCR 193).
Similarly in Ajmer Singh v. State of Punjab (1953 SCR 418), it was observed
that the interference of the High Court in an appeal against the order of
acquittal would be justified only if there are `very substantial and compelling
reasons to do so'. In some other decisions, it has been stated that an order of
acquittal can be reversed only for `good and sufficiently cogent reasons' or
for `strong reasons'. In appreciating the effect of these observations, it must
be remembered that these observations were not intended to lay down a rigid or
inflexible rule which should govern the decision of the High Court in appeals
against acquittals. They were not intended, and should not be read to have
intended to introduce an 26 additional condition in clause (a) of Section
423(1) of the Code. All that the said observations are intended to emphasize is
that the approach of the High Court in dealing with an appeal against acquittal
ought to be cautious because as Lord Russell observed in Sheo Swarup the
presumption of innocence in favour of the accused `is not certainly weakened by
the fact that he has been acquitted at his trial'. Therefore, the test
suggested by the expression `substantial and compelling reasons' should not be
construed as a formula which has to be rigidly applied in every case. That is
the effect of the recent decisions of this Court, for instance, in Sanwat Singh
v. State of Rajasthan and Harbans Singh v. State of Punjab (1962 Supp 1 SCR
104) and so, it is not necessary that before reversing a judgment of acquittal,
the High Court must necessarily characterise the findings recorded therein as
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
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.
doubts belong to the accused. Otherwise any practical system of justice will
then breakdown and lose credibility with the community. The evil of acquitting
a guilty person light-heartedly, as a learned author (Glanville Williams in
Proof of Guilt) has saliently observed, goes much beyond the simple fact that
just one guilty person has gone unpunished. If unmerited acquittals become
general, they tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions against indicted
`persons' and more severe punishment of those who are found guilty. Thus, too
frequent acquittals of the guilty may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless. For all these reasons it is
true to say, with Viscount Simon, that `a miscarriage of justice may arise from
the acquittal of the guilty no less than from the conviction of the
innocent....' In short, our jurisprudential 28 enthusiasm for presumed
innocence must be moderated by the pragmatic need to make criminal justice
potent and realistic. A balance has to be struck between chasing chance
possibilities as good enough to set the delinquent free and chopping the logic
of preponderant probability to punish marginal innocents."
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 29
expressions have been used more as flourishes of language, to emphasise the
reluctance of the appellate court to interfere with an order of acquittal than
to curtail the power of the appellate court to review the entire evidence and
to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of
A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh v. State of Maharashtra (AIR 1974
SC 286), it has been said that to the principles laid down in Sanwat Singh case
may be added the further principle that `if two reasonable conclusions can be
reached on the basis of the evidence on record, the appellate court should not
disturb the finding of the trial court'. This, of course, is not a new
principle. It stems out of the fundamental principle of our criminal
jurisprudence that the accused is entitled to the benefit of any reasonable
doubt. If two reasonably probable and evenly balanced views of the evidence are
possible, one must necessarily concede the existence of a reasonable doubt.
But, fanciful and remote possibilities must be left out of account. To entitle
an accused person to the benefit of a doubt arising from the possibility of a
duality of views, the possible view in favour of the accused must be as nearly
reasonably probable as that against him. If the preponderance of probability is
all one way, a bare possibility of another view will not entitle the accused to
claim the benefit of any doubt. It is, therefore, essential that any view of
the evidence in favour of the accused must be reasonable even as any doubt, the
benefit of which an accused person may claim, must be reasonable."
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, 30 manifestly erroneous or demonstrably unsustainable. If the appellate
court answers the above question in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate court holds, for reasons to be
recorded, that the order of acquittal cannot at all be sustained in view of any
of the above infirmities it can then-and then only- reappraise the evidence to
arrive at its own conclusions."
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
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
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."
Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the trial court acquitted the
accused but the High Court convicted them. Negativing the contention of the
appellants that the High Court could not have disturbed the findings of fact of
the trial court even if that view was not correct, this Court observed:
"7. We do not
agree with the submissions of the learned counsel for the appellants that under
Section 378 of the Code of Criminal Procedure the High Court could not disturb
the finding of facts of the trial court even if it found that the view taken by
the trial court was not proper. On the basis of the pronouncements of this
Court, the settled position of law regarding the powers of the High Court in an
appeal against an order of acquittal is that the Court has full powers to
review the evidence upon which an order of acquittal is based and generally it
will not interfere with the order of acquittal because by passing an order of
acquittal the presumption of innocence in favour of the accused is reinforced.
The golden thread which runs through the web of administration of justice in
criminal case is that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but judge-made guidelines for
circumspection. The paramount consideration of the court is to ensure that
miscarriage of justice is avoided. A miscarriage of justice which may arise
from the acquittal of the guilty is no less than from the conviction of an
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".
Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470,
this Court said:
32 "12. Doubtless
the High Court in appeal either against an order of acquittal or conviction as
a court of first appeal has full power to review the evidence to reach its own
independent conclusion. However, it will not interfere with an order of
acquittal lightly or merely because one other view is possible, because with
the passing of an order of acquittal presumption of innocence in favour of the
accused gets reinforced and strengthened. The High Court would not be justified
to interfere with order of acquittal merely because it feels that sitting as a
trial court it would have proceeded to record a conviction; a duty is cast on
the High Court while reversing an order of acquittal to examine and discuss the
reasons given by the trial court to acquit the accused and then to dispel those
reasons. If the High Court fails to make such an exercise the judgment will
suffer from serious infirmity."
Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court observed:
"21. There is no
embargo on the appellate court reviewing the evidence upon which an order of
acquittal is based.
Generally, the order
of acquittal shall not be interfered with because the presumption of innocence
of the accused is further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible 33 evidence is ignored,
a duty is cast upon the appellate court to reappreciate the evidence in a case
where the accused has been acquitted, for the purpose of ascertaining as to
whether any of the accused committed any offence or not".
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. However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the trial court is based on
evidence and the view taken is reasonable and plausible. It will not reverse
the decision of the trial court merely because a different view is possible.
The appellate court will also bear in mind that there is a presumption of
innocence in favour of the accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to interfere, it should assign
reasons for differing with the decision of the trial court."
the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC
415), the following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal were culled out:
(1) An appellate
court has full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of
Criminal Procedure, 1973 puts no limitation, restriction or condition on
exercise of such power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of law.
expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the court to review the evidence
and to come to its own conclusion.
(4) An appellate
court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused.
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 35 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.
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":
Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]:
multiplication rule does not apply if the separate pieces of evidence are
dependent. Two events are dependent when they tend to occur together, and the
evidence of such events may also be said to be dependent.
In a criminal case,
different pieces of evidence directed to establishing that the defendant did
the prohibited act with 36 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
would be called reasonable if they are free from a zest for abstract
speculation. Law cannot afford any favourite other than truth. To constitute
reasonable doubt, it must be free from an overemotional response.
Doubts must be actual
and substantial doubts as to the guilt of the accused persons arising from the
evidence, or from the lack of it, as opposed to mere vague apprehensions. A
reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a
fair doubt based upon reason and common sense. It must grow out of the evidence
in the case.
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).
above position was highlighted in Krishnan and Anr. v. State represented by
Inspector of Police (2003 (7) SCC 56).
the conclusions of the High Court are considered in the background of the principles
set out above, the inevitable conclusion is that the appeals are without merit,
deserve dismissal, which we direct.
(Dr. ARIJIT PASAYAT)
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