Ghurey Lal Vs. State of
U.P.  INSC 1252 (30 July 2008)
JURISDICTION CRIMINAL APPEAL NO.155 OF 2006 Ghurey Lal ... Appellant Versus
State of U.P. ... Respondent
Dalveer Bhandari, J.
appeal is directed against the judgment of the High Court of Allahabad dated
11th November, 2005 passed in Criminal Appeal No. 365 of 1981.
is a murder case in which the trial court acquitted the accused. The High Court
reversed the trial court's 2 decision, finding the accused guilty. In doing
so, the appellate court failed to give proper weight to the views of the trial
court as to credibility of witnesses, thereby ignoring the standards by which
the appellate courts consider appeals against acquittals.
have endeavoured to set out the guidelines for the appellate courts in dealing
with appeals against acquittal. An overriding theme emanates from the law on
appeals against acquittals. The appellate court is given wide powers to review
the evidence to come to its own conclusions. But this power must be exercised
with great care and caution. In order to ensure that the innocents are not
punished, the appellate court should attach due weight to the lower court's
acquittal because the presumption of innocence is further strengthened by the
acquittal. The appellate court should, therefore, reverse an acquittal only
when it has "very substantial and compelling reasons."
giving our reasons for reversing the appellate court's judgment and restoring
that of the trial court, we provide a 3 brief review of the facts, the
reasoning of the trial and High Court as well as the standards by which appeals
against acquittals are reviewed according to settled principles of criminal
jurisprudence in our country.
turning to the facts that were before the trial court, we note that there is an
interesting coincidence in this case. The names of both the accused and the
deceased are Ghurey Lal. Therefore, to avoid confusion, we have referred to
them as "accused" and "deceased."
facts, according to prosecution, which are necessary to dispose of this appeal
are recapitulated as under:- It appears that at the heart of this matter lies a
property dispute. The accused testified in favour of his great-grand daughter,
Ram Devi. This testimony went against the deceased, creating enmity between the
14.3.1979, the deceased, Shiv Charan P.W.1, Brij Raj Singh P.W.2, Yad Ram
P.W.4, Nathi Lal (not examined) and Bishambhar (not examined) had taken the customary
Gur (Jaggery) during the Holi festival.
their way home, they happened to pass by the home of the accused. The accused
was standing just outside his home and was holding a shot gun. The accused
began to verbally abuse the deceased. Thereafter, the accused fired one single
shot from his gun, killing the deceased with a bullet and causing injuries to
Brij Raj Singh P.W. 2 with pellets.
Hearing the gun shot,
some people quickly assembled at the scene. The accused fled to his room, which
he locked from inside. The uncle of the deceased, Shiv Charan, lodged the FIR
that very evening, the 14th March, 1979 at 6.15 p.m., at the Barhan Police
Station in the District of Agra.
accused provided his own version of the event.
According to the
statement of the accused under section 313 of the Code of Criminal Procedure,
he went to the place of Kanchan Singh where Gur (Jaggery) was being
distributed. 5 One Bal Mukand told the accused to leave the Gur distribution
ceremony, as the deceased, Brij Raj Singh P.W. 2, Yad Ram P.W.4, Nathi Lal and
Bishambhar had collected pharsa, lathis and kattas declaring that they will
deal with him (accused) when he comes there. On hearing this, the accused
returned to his home and grabbed his gun. The deceased and others then arrived
at his home, brandishing weapons. The deceased carried a pharsa, Nathi Lal had
a katta, Brij Raj Singh a knife and Yad Ram and Bishambhar possessed lathis. To
threaten and check them, the accused aimed his gun at them. This was to no
avail. The deceased and others struck at the accused, hitting his gun. Nathi
Lal fired his katta, causing pellet injuries to Brij Raj Singh P.W.2.
A scuffle ensued in
which the deceased's group tried to snatch away his gun. In the scuffle, the
gun was accidentally fired, killing the deceased. The accused sustained pharsa
and lathi blows on the butt and barrel of the gun. Fearing for his life, the
accused went to his room and locked the door from inside.
Raj Singh P.W. 2 was sent to the Government Hospital, Barhan for medical
examination. Dr. Govind Prasad 6 P.W.3 found the following injuries on the
person of Brij Raj Singh, P.W. 2:
1. Round lacerated
wound 0.3 cm x 0.3 cm on right side back 10 cms away from mid line 9 cms below
border of scapula. Margins burnt and inverted, and tattooing present in an area
of 5 cms. No pellets palpable. Bleeding present.
2. Lacerated wound of
exit 1.5 cm x 0.5 cm on right side back 0.8 cm away and lateral from injury no.
1. Skin burnt and tattooing present in the area of 5 cm x 5 cms. Merging of the
wound inverted. No pellets palpable.
Doctor opined that the injuries were caused by a firearm. He advised that
x-rays be taken and that the injuries be kept in observation. In his opinion,
the injuries were caused by a gun shot and were of fresh duration. In his
opinion, the injuries could have been caused around 4 p.m.
The doctor sent the
memo Ex. Ka-4 on the same day, informing the case of Medico legal nature to the
Barhan Police Station.
autopsy on the deceased was conducted by Dr. Ram Kumar Gupta, P.W.5, Medical
Officer, SNM Hospital, 7 Firozabad, District Agra. It revealed the following
ante-mortem injuries on the deceased:
1. Gun shot wound of
entry 2.5 cm x 2.5 cm x through and through on right side neck 2 cm lateral to
midline of neck front aspect.
2. Gun shot wound of
exit 5 cm x 4 cm x through and through on right side back of neck 5 cm below
right ear corresponding to injury no. 1 with margins averted.
The Doctor opined
that the cause of death was due to shock and hemorrhage as a result of
prosecution examined Shiv Charan P.W.1, Brij Raj Singh P.W.2 and Yad Ram P.W.4
as eye witnesses of the occurrence. Dr. Govind Prasad P.W.3, Medical Officer
In- charge, who had medically examined Brij Raj Singh, proved the injury report
Ext. Ka 3. Dr. Ram Kumar Gupta P.W. 5, who had conducted autopsy on the dead
body of the deceased, was also examined. On internal examination, he found semi
digested food material in the small intestine and there was faecal matter
present in the large intestines. He prepared the post-mortem report Ex. Ka-5.
In his opinion, the death of the 8 deceased had taken place around 4 p.m. on
14.3.79 on account of the said injuries and shock.
accused was charged with killing the deceased under section 302 of the Indian
Penal Code (For short, IPC) and with causing simple injuries to the injured
under section 323 IPC.
He was also charged
with attempting to murder Brij Raj under section 307 IPC. The accused appellant
denied the charges, pleaded not guilty and asked to be tried.
crucial question which arose for consideration was whether the injuries caused
to Brij Raj Singh P.W.2 could have been caused by the same shot that killed the
If that was possible,
the prosecution version became probable.
But if the shot that
killed the deceased and the shot that caused injuries to Brij Raj Singh were
from different weapons, then the defence version was more probable. Shri B.
Rai, Ballistic Expert, Forensic Science Laboratory, U.P. was called as court
witness No.1. He was asked to explain the nature of the 12 bore cartridges and
give an opinion, for which he wanted time to carry out experiments in the
laboratory. The 9 gun was given to him and he performed a test in his
laboratory in the light of the statements of the eye-witnesses, medical report
and site-plan. He submitted his report, Ex. C- Ka.1, wherein he clearly opined
that injuries Nos. 1 and 2 of the deceased were possible by the gun Ex.3 of the
accused and injuries Nos.1 and 2 of the injured Brij Raj Singh were possible by
another fire. By "fire", it is clear from the record that the
Ballistic Expert was referring to a "firearm".
we must answer the following question:
prosecution story of a single shot causing injury to two persons, that is
bullet injury to deceased and pellet injury to Brij Raj Singh, with the accused
as the aggressor, stands sufficiently proved beyond reasonable doubt?
17. In order to
decide whether a single shot was fired or in fact two different shots were
fired, we must carefully examine the versions of the prosecution and the
defence and the report of the Ballistic Expert. According to the trial court,
the medical evidence coupled with the Ballistic Expert report revealed the
existence of two fires from two weapons and as 10 such was inconsistent with
the prosecution story. The trial court further provided that it is difficult to
separate falsehood from the truth, as some material aspects of the occurrence
appeared to have been deliberately withheld. "One has to separate the
chaff from the grain and it is difficult to lay hand upon what part of the
prosecution evidence is true and what part is untrue". According to the
accused, the trial court had taken a reasonable and possible view of the entire
evidence on record.
post-mortem report Ex. Ka-5, photo lash Ex. Ka-7 and the statement of Dr. Ram
Kumar Gupta P.W.5 indicate that the wound of entry was on the right side of the
neck 2 cm. lateral middle line on front aspect. The exit wound was on the right
side back of neck 5 cm. below the right ear. This means that the bullet had
entered from the front side of the neck from a distance of 2 cm. lateral to
middle line, and it had come out from the back of the neck at a place 5 cm.
below the right ear. In this way, the trial court reasoned that the barrel of
the gun, when discharging, was slanting vertical. The mouth of the barrel was
upward and its butt downward. The 11 barrel and the butt were not horizontal
to the ground at that time.
trial court observed that injury no. 1 (wound of entry) on Brij Raj Singh P.W.2
was on the right side of his back 10 cm. away from the mid line, 9 cms. below
the lower border of scapula. Injury no. 2 (wound of exit) was on the right side
of his back 8 cm. away and lateral from injury no.1. This means that the exit
wound was by the side of the entry wound at a distance of 8 cm.
dictionary meaning of `lateral' is "by the side" and this means that
the two injuries caused by pellets to Brij Raj Singh P.W.2 were horizontal and
not vertical. The trial court opined that the single shot could not have caused
vertical injury to one person and horizontal injury to another. It found it doubtful
and not sufficiently proved that the same shot could have injured Brij Raj
Singh and killed the deceased.
conclusion is further fortified by the report of the Ballistic Expert Sri B.
Rai court witness No.1. He has given a 12 definite opinion after making actual
experiments by firing shots. This was done from the distance at which the
occurrence was said to have taken place. The eye-witnesses had testified to
this distance. The Ballistic Expert opined that the injuries to Brij Raj Singh
P.W.2 were from a different shot from the one that killed the deceased.
relevant part of the evidence of the Ballistic Expert reads as under:
Whether bullet and Chharras both be used in 12 bore gun or not? Ans.- 12 bore
gun have no bullet. It has small chharas, big chharas or one single ball shot
with diameter about 0645."
Ballistic Expert after studying the post-mortem report observed as under:
Post Mortem report No. 51/79 of deceased Ghurey Lal and injury report of
Brijraj Singh dated 14.3.79, statement of doctor and witnesses and site plan
and keeping the result of above experiments in mind, I reached in conclusion
that injury No. 1 and 2 possible to sustain to deceased Ghurey Lal by this gun
from the distance of 10 feet and injury No. 1 and 2 of injured Brij Raj Singh
seems to sustain by some other shot."
Ballistic Expert categorically stated that in cartridges of standard 12 bore
shot guns, bullets from other rifles cannot be used with small and big chharas
(pellets). Therefore, the trial court concluded that both the injuries were not
possible by a single firearm.
experts of forensic science, particularly ballistic experts, do not indicate
that from a single cartridge both bullets and pellets can be fired. Professor
Apurba Nandy in his book "Principles of Forensic Medicine", first
published in 1995 and reprinted in 2001, discussed cartridges. Professor Nandy
mentioned that in some cases, instead of multiple pellets, a single shot or
metallic ball, usually made of lead, is used. We note that the discussion
regarding cartridges exclusively mentions pellets. No mention of bullets and
pellets in cartridges is found in the numerous volumes of scholarly literature
that we have consulted. Relevant discussion reads as under: p. 241 "The
Cartridges (the ammunitions)- The cartridge of a shotgun and the cartridge of a
rifled weapon are essentially different in their makes.
14 The cartridge of
a shot gun - (Fig. 10.69) The cartridge of a shotgun has the following parts and
1. The cartridge case
- The longer anterior part of the cartridge case is made of card board.
The posterior part
and the posterior surface is made of brass. The margin of the breach end of the
cartridge case is rimmed, so that, the cartridge can be properly placed inside
the chamber and with pressure on the rim the empty cartridge case can be easily
ejected out of the chamber. The anterior margin of the cartridge case is
twisted inward to keep the pellets and other materials inside the case compact.
The anterior part of the cartridge case is made of cardboard, for which, with
production of gas inside the cartridge case it can slightly expand so that, the
twisted grip by the anterior margin will be released and the pellets can come
out of the case. The posterior metallic part keeps the shape of the breach end
of the cartridge intact. It helps to maintain the right position of the
cartridge in the chamber, so that, the percussion pin of the hammer strikes the
percussion cap rightly at the breach surface of the cartridge. At the central
part at the breach end inside the cartridge case is the percussion cap.
2. The percussion cap
- It contains primer or priming mixture and there are some vents or openings on
the wall of the percussion cap. When the posterior surface of the percussion
cap is struck by the percussion pin, the priming mixture which consists of a
mixture either of mercury fulminate, pot, pot, chlorate and antimony sulphide
or of antimony sulphide with lead styphnate, lead peroxide, barium nitrate or
tetracene, gets ignited due to the pressure and friction and fire comes out
through the vents or openings on the wall of the percussion cap.
15 3. Contents
inside the cartridge case.
percussion cap is the gun powder or the propellant charge which cannot ignite
by pressure or friction and which on being ignited does not produce flame but
produces huge amount of gas. Usually the gunpowder of the shotguns contains
charcoal, pot, nitrate and sulphur. This combination of the gunpowder is known
as black powder, as it produce much smoke. Now-a-days semi smokeless gun powder
is in use in shot guns which is a combination of 80% of black powder and 20% of
smokeless powder. Smokeless powder is ordinarily used in the cartridges of
rifles (nitrocellulose or a combination of nitrocellulose and nitroglycerine).
The black powder
produces 200 - 300 ml. of gas per grain. In front of the gunpowder, inside the
cartridge case, there is a thin cardboard disc. In front of the cardboard, disc
is placed the wad. The wad is made of soft substance like, felt, cork, straw or
rug. In front of the wad, there is another card board disc. In front of this
disc, the pellets are placed. The pellets are spherical projectiles used in
shot guns. Their size may be variable, according to the need and make. One
ounce of pellets may consist of 6 to 2,600 of them. In front of the pellets
there is another cardboard disc on the anterior margin of which the anterior
margin of the cartridge case is twisted. The functions of the wad are to give
compactness to the gunpowder, to prevent admixture of propellant charge and the
pellets and prevent leakage of the gas produced after the firing. Wad also
cleans the inner surface of the barrel after the pellets pass out through the
barrel. To facilitate this cleaning, some greasy material is soaked in the wad.
In between the propellant charge and the wad there is a cardboard disc so that
the greasy substance in the wad will not be soaked by the propellant charge and
become useless. In between the wad and the pellets there is a disc which in one
hand prevents impregnation of the pellets in the soft 16 wad and on the other,
prevents leakage of the greasy substance from the wad in the pellets which
would otherwise become adhesive to each other loosing their dispersion
capacity. The anterior - most disc, placed in front of the pellets, give
compactness to the pellets and the whole content of the cartridge case.
Shots of different
sizes are suitable for different purposes. Accordingly "Buck shots"
or "Bird shots" have different sized shots or pellets for hunting wild
birds or other prey.
In some cases instead
of multiple pellets a single hot or metallic ball, usually made up of lead, is
used. "Rifled slugs" are single shot projectiles for shot guns with
prominent parallel grooves on the surface."
26. In this book, the
assessment of the direction of firing from the margin of the wound of entrance
has also been given, which reads thus: p. 257 "Assessment of the direction
of firing from the margin of the wound of entrance - (i) (a) In case of shotgun
injury, the pattern of dispersion of the pellets give the direction of the
firing. The pellets disperse over wider area as it travels more. Hence firing
is suspected to have been from the side opposite to the side of wider
dispersion of the pellets. ......"
27. "Firearms in
Criminal Investigation and Trials" was written by a distinguished
professor Dr. B.R. Sharma. He has written in some detail about 12 bore guns.
This book also defines Pellet Pattern which reads thus: p.204 "Pellet
Pattern The area covered (pellet spread) by the pellets fired from a shotgun is
proportional to the distance between the muzzle of the firearm and the target.
Greater the range, greater is the area covered by the pellets. The spread of
the pellets is affected mainly by the length of the barrel of the firearm and
its muzzle characteristics (whether it is choked or not). The condition of the
ammunition also affects the results. If experiments are performed with the same
firearm and ammunition of the same make and batch, the test patterns provide fairly
accurate estimates of the range.
Generally, the whole
charge enters the body en masse up to a range of about two metres in a
factory-made 12-bore shotgun. It forms a rat-hole of about two to six
centimetres in diameter. The rat-hole is surrounded by individual holes when
the range of fire is about two to seven metres..."
28. The trial court
stated that in the FIR itself it is mentioned that the injuries to Brij Raj
Singh were by pellets and that of the deceased by a bullet. The Ballistic
Expert has stated that the cartridge containing pellets cannot contain a
18 Accordingly, the
trial court reasoned that two weapons were used.
29. The Ballistic
Expert is a disinterested, independent witness who has technical knowledge and
experience. It follows that the trial judge was fully justified in placing
reliance on his report.
30. The trial court
also observed that removing the body of the deceased from the place of
occurrence creates doubt that the prosecution was planning to substitute
another story for the real facts. As such, the possibility that the deceased
and his group were the aggressors is not ruled out. It is possible that pharsa
and lathi blows had made the marks that were found on the gun. The gun may have
snatched all of a sudden, causing it to fire upon the deceased and Brij Raj.
circumstances of the case, the use of another weapon, which had caused injuries
to Brij Raj Singh P.W.2, is also not ruled out.
31. The trial court
further observed that the substratum of the prosecution story about the
injuries to Brij Raj Singh is not established beyond reasonable doubt and the
story of shooting the deceased by the same shot fired by the accused is not
separable from other doubtful evidence of eye- witnesses. The circumstances show
that the possibility of aggression on the part of the complainant side is not
ruled out, then the benefit of doubt for killing the deceased by the accused
would also go to the accused.
32. The trial court
also found force in the plea of right of private defence as set up by the
accused. The trial court mentioned that there is force in this argument where
the circumstances of the case show that two fire arms were used in the
occurrence. The accused was all alone in his house at that time. The availability
of a second weapon is possible only when the complainant side had brought it to
the scene. This circumstance supports the defence case, that the complainants'
side was the aggressor and they had come armed with weapons to the scene. It
follows that the accused 20 would apprehend grievous hurt and danger to his
right of self defence was open to him.
33. In the concluding
paragraph of the judgment, the trial court observed that when neither the
prosecution nor the defence version is complete, then it is obvious that both
the parties are withholding some information from the court. The burden of
proving the charge to the hilt lies upon the prosecution. It has failed to
discharge its burden. Thus, the benefit has to go to the accused. According to
the trial court, the accused could not be convicted for the charges framed
against him. He was entitled to get the benefit of doubt and, consequently, the
accused had to be acquitted of the charges under sections 302, 307 and 323 IPC.
34. The State,
aggrieved by the trial court's judgment, preferred an appeal before the High
35. The High Court in
appeal re-appreciated the entire evidence and came to the conclusion that the
trial court's judgment was perverse and unsustainable. It therefore set 21
aside the trial court judgment and convicted the accused under section 302 IPC
for the murder of the deceased and under section 324 IPC for injuring Brij Raj
Singh and sentenced him to life imprisonment and for six months R.I.
36. Against the
impugned judgment of the High Court, the accused appellant has preferred appeal
to this court. We have been called upon to decide whether the trial court
judgment was perverse and the High Court was justified in setting aside the
same or whether the impugned judgment is unsustainable and against the settled
37. We deem it
appropriate to deal with the main reasons by which the trial court was
compelled to pass the order of acquittal and the main reasons of the High Court
in reversing the judgment of the trial court.
MAIN REASONS FOR
ACQUITTAL BY THE TRIAL COURT:
38. The trial court
acquitted the accused for the following reasons:
1. The prosecution
story of single shot injury to two persons one standing horizontally and the
other vertically stands totally discredited by the medical and the evidence of
2. According to the
FIR, the deceased received a spherical ball (ball shot) bullet injury and Brij
Raj Singh P.W.2 received pellet injuries. The accused's gun had a cartridge
that could only contain pellets. The Ballistic Expert has clearly stated that a
cartridge containing pellets cannot contain a bullet. As such, it appears that
two weapons were used.
3. Dr. Ram Kumar
Gupta, P.W.5 who conducted the post-mortem of the deceased, clearly stated that
the deceased received injuries from a bullet whereas Dr. Govind Prasad Bakara
who had examined Brijraj Singh P.W.2 clearly 23 stated that both injuries were
caused by a pellet.
to medical evidence coupled with the evidence of the Ballistic Expert, two
firearms must have been used.
This version is quite
inconsistent with the prosecution story.
4. The injuries
received by Brij Raj Singh P.W.2 were from the back side and the injury
received by the deceased was from the front side and this shows that two
weapons may have been used.
5. Removal of the
body of the deceased from the place of occurrence also created doubt with
regard to the veracity of the prosecution version.
6. The possibility
that the deceased and the complainant's side were aggressors and had gone there
and caused pharsa and lathi blows on the accused cannot be ruled out because of
the marks on the gun Ex.3. That the said gun was fired in snatching all of a sudden,
injuring the deceased also cannot be ruled out from the circumstances of the
7. The trial court
did not discard the defence version of right of private defence as pleaded by
8. The trial court
observed that it is difficult to separate falsehood from the truth, where some
material aspects of the occurrence seem to have been deliberately withheld. It
is a well- established principle of criminal jurisprudence that when two
possible and plausible explanations co-exist, the explanation favourable to the
accused should be adopted.
25 MAIN REASONS FOR
REVERSAL OF ACQUITTAL ORDER:
39. The High Court
gave the following reasons for setting aside the acquittal:
1. A perusal of the
post-mortem report goes to show that autopsy conducted on the dead body of the
deceased revealed ante- mortem gunshot wound of entry 2.5 cm x through and
through on right side neck 2 cm lateral to midline of neck front aspect having
corresponding wound of exit 5 cm x 4 cm on right side back of neck 5 cm below right
ear. Therefore, this injury was almost horizontal.
examination of injured Brij Raj Singh revealed a round lacerated wound of entry
0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 cm below lower
border of scapula having wound of exit 1.5 cm x 0.5 cm x 0.5 on 26 right side
back 0.8 cm away and lateral from injury no. 1. Thus, this injury was also
3. The observation
made by the trial judge that firearm injury caused to the deceased was vertical
and to that of Brij Raj Singh horizontal is wholly fallacious.
4. A layman does not
understand the distinction between a cartridge containing pellets and the
bullet. In common parlance, particularly in villages when a person sustains
injuries by gun shot, it is said that he has received `goli' injury. Ghurey Lal
fired at his uncle with his gun causing him Goli (bullet) injury and Brij Raj
Singh also received pellet (chhara) injury which goes to show that injuries
received by them were caused by two different weapons. There is hardly 27 any
difference between bullet and pellet for a layman. From 12 bore gun cartridge
is fired and 12 bore cartridge always contain pellets though size of pellets
may be different.
5. A perusal of the
post-mortem reports goes to show that autopsy conducted on the dead body of the
deceased revealed ante- mortem gun shot wound of entry 2.5 cms.
through and through
on right side neck 2 cm lateral to midline of neck front aspect having
corresponding wound of exit 5 cm x 4cm on right side back of neck 5 cm below
right ear. Therefore, this injury was almost horizontal.
6. The medical
examination of injured Brij Raj Singh revealed a round lacerated wound of entry
0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 28 cm below
lower border of scapula having wound of exit 1.5 cm x 0.5 cm x 0.5 cm on right
side back 0.8 cm away and lateral from injury no.1. Thus, this injury was also
7. The learned trial
judge had noted the evidence of B. Rai, Ballistic Expert, C.W.1 that both the
injuries would have been caused by two shots. While B. Rai, Ballistic Expert,
C.W.1 had given the said opinion, he had also stated in his cross- examination
by the prosecution that if the assailant fired from place `C' and the person
receiving pellet injury standing at place `B' would have turned around, on
dispersal of pellets he could have received the pellet injuries if deceased and
injured both would have stood in the same line of firing.
29 OUR CONCLUSIONS:
40. We disagree with
the High Court. Admittedly, the deceased died of a bullet injury whereas Brij
Raj Singh, P.W. 2 received pellet injuries. It is well settled that a cartridge
cannot contain pellet and bullet shots together. Therefore, the injuries on
deceased and injured P.W. 2 clearly establish that two shots were fired from
two different fire arms.
41. The High Court
also observed that the laymen, meaning thereby the villagers, hardly know the
difference between a bullet and a pellet. This finding has no basis,
particularly in view of the statement of all the witnesses on record. Wherever
the witnesses wanted to use `bullet' they have clearly used `Goli' or `bullet'
and wherever they wanted to use `pellet' they have clearly used the word
`Chharra' which means pellets, so to say that the witnesses did not understand
the distinction between the two is without any basis or foundation.
42. Mr. Sushil Kumar,
learned senior advocate appearing for the appellant, submitted that the
judgment of the trial court was based on the correct evaluation of the evidence
and the 30 view taken by the trial court was definitely a reasonable and
plausible. Therefore, according to the settled legal position, the High Court
was not justified in interfering with the judgment of the trial court.
43. Shri Ratnakar
Das, learned senior advocate appearing for the respondent State submitted that
the impugned order of the High Court is consistent with the settled legal
position. He submitted that once an order of acquittal is challenged then the
appellate court has all the powers which are exercised by the trial court. We
agree that the appellate court is fully empowered to re-appreciate and
re-evaluate the entire evidence on record.
44. We deem it
appropriate to deal with some of the important cases which have been dealt with
under the 1898 Code by the Privy Council and by this Court. We would like to
crystallize the legal position in the hope that the appellate courts do not
commit similar lapses upon dealing with future judgments of acquittal.
45. The earliest case
that dealt with the controversy in issue was Sheo Swarup v. King Emperor AIR
1934 Privy Council 227. In this case, the ambit and scope of the powers of the
appellate court in dealing with an appeal against acquittal has been aptly
elucidated by the Privy Council. Lord Russell writing the judgment has observed
as under: (at p. 230):
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.."
The law succinctly
crystallized in this case has been consistently followed by this Court. On
proper analysis of the ratio and findings of this case, it is revealed that the
findings of the trial court are based on the fundamental principles of the
criminal jurisprudence. Presumption of innocence in favour of the accused
further gets reinforced and strengthened by the acquittal of the trial court.
The appellate court undoubtedly has wide powers of re-appreciating and re- 32
evaluating the entire evidence but it would be justified in interfering with
the judgment of acquittal only when the judgment of the trial court is palpably
wrong, totally ill- founded or wholly misconceived, based on erroneous analysis
of evidence and non-existent material, demonstrably unsustainable or perverse.
46. This Court again
in the case of Surajpal Singh & Others v. State, AIR 1952 SC 52, has spelt
out the powers of the High Court. The Court has also cautioned the Appellate
Courts to follow well established norms while dealing with appeals from
acquittal by the trial court. The Court observed as under:
"It is well
established that in an appeal under S. 417 Criminal P.C., 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 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 can be reversed only for very substantial and compelling
47. This Court
reiterated the principles and observed that presumption of innocence of accused
is reinforced by an order of the acquittal. The appellate court could have
interfered only for very substantial and compelling reasons.
48. In Tulsiram Kanu
v. The State, AIR 1954 SC 1, this Court explicated that the appellate court
would be justified in reversing the acquittal only when very substantial
question and compelling reasons are present. In this case, the Court used a
different phrase to describe the approach of an appellate court against an
order of acquittal. There, the Sessions Court expressed that there was clearly
reasonable doubt in respect of the guilt of the accused on the evidence put
before it. Kania, C.J., observed that it required good and sufficiently cogent
reasons to overcome such reasonable doubt before the appellate court came to a
49. In the same year,
this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar
Pradesh, AIR 1954 SC 637, wherein it said that the High Court had not kept the
rules and principles of administration of criminal justice 34 clearly before
it and that therefore the judgment was vitiated by non-advertence to and
mis-appreciation of various material facts transpiring in evidence. The High
Court failed to give due weight and consideration to the findings upon which
the trial court based its decision.
50. The same
principle has been followed in Atley v. State of U.P. AIR 1955 SC 807 (at pp.
809-10 para 5), wherein the Court said:
"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 35 due weight
to the opinion of the trial court which recorded the order of acquittal."
51. The question was
again raised prominently in Aher Raja Khima v. State of Saurashtra AIR 1956 SC
217. Bose, J. expressing the majority view observed (at p.220):
"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; Ajmer Singh v. State of
Punjab (AIR 1953 SC 76, at pp.77-78); and if the trial Court takes a reasonable
view of the facts of the case, interference under S. 417 is not justifiable unless
there are really strong reasons for reversing that view. Surajpal Singh v.
State AIR 1952 SC 52 at 54."
52. In Balbir Singh
v. State of Punjab AIR 1957 SC 216, this Court again had an occasion to examine
the same proposition of law. The Court (at page 222) observed as under:
"It is now well
settled that though the High Court has full power to review the evidence upon
which an order of acquittal is founded, it is equally well settled that the
presumption of innocence of the accused person is further reinforced by his
acquittal by the trial Court and the views of the trial Judge as to the
credibility of the witnesses must be given proper weight and consideration; and
the slowness of an appellate Court in disturbing a finding of fact arrived at
by a Judge who had the 36 advantage of seeing the witnesses must also be kept
in mind, and there must be substantial and compelling reasons for the appellate
Court to come to a conclusion different from that of the trial Judge."
53. A Constitution
Bench of this Court in M.G. Agarwal v.
State of Maharashtra
AIR 1963 SC 200, observed as under:
"There is no
doubt that the power conferred by clause (a) which deals with an appeal against
an order of acquittal is as wide as the power conferred by clause (b) which
deals with an appeal against an order of conviction, and so, it is obvious that
the High Court's powers in dealing with criminal appeals are equally wide
whether the appeal in question is one against acquittal or against conviction.
That is one aspect of the question. The other aspect of the question centres
round the approach which the High Court adopts in dealing with appeals against
orders of acquittal. In dealing with such appeals, the High Court naturally
bears in mind the presumption of innocence in favour of an accused person and
cannot lose sight of the fact that the said presumption is strengthened by the
order of acquittal passed in his favour by the trial Court and so, the fact
that the accused person is entitled for the benefit of a reasonable doubt will
always be present in the mind of the High Court when it deals with the merits
of the case. As an appellate Court the High Court is generally slow in
disturbing the finding of fact recorded by the trial Court, particularly when
the said finding is based on an appreciation of oral evidence because the trial
Court has the advantage of watching the demeanour of the witnesses who have
given evidence. Thus, though the powers of the High Court in dealing with an
appeal against acquittal 37 are as wide as those which it has in dealing with
an appeal against conviction, in dealing with the former class of appeals, its
approach is governed by the overriding consideration flowing from the
presumption of innocence. ........
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, and so,
it is not necessary that before reversing a judgment of acquittal, the High
Court must necessarily characterize the findings recorded therein as perverse.
The question which
the Supreme Court has to ask itself, in appeals against conviction by the High
Court in such a case, is whether on the material produced by the prosecution,
the High Court was justified in reaching the conclusion that the prosecution
case against the appellants had been proved beyond a reasonable doubt, and that
the contrary view taken by the trial Court was erroneous. In answering this
question, the Supreme Court would, no doubt, consider the salient and broad features
of the evidence in order to appreciate the grievance made by the appellants
against the conclusions of the High Court."
54. In Noor Khan v.
State of Rajasthan, AIR 1964 SC 286, this Court relied on the principles of law
enunciated by the Privy Council in Sheo Swarup (supra) and observed thus:
418 and 423 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. But in exercising
the power conferred by the Code and 38 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 not weakened by the fact that he has been acquitted at
(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."
55. In Khedu Mohton
& Others v. State of Bihar, (1970) 2 SCC 450, this Court gave the appellate
court broad guidelines as to when it could properly disturb an acquittal. The
Court observed as under:
"3. It is true
that the powers of the High Court in considering the evidence on record in
appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals
against convictions but that court at the same time should bear in mind the
presumption of- innocence of accused persons which presumption is not weakened
by their acquittal. It must also bear in mind the fact that the appellate judge
had found them not guilty. Unless the conclusions reached by him are palpably
wrong or based on erroneous view of the law or that his decision is likely to
result in grave injustice, the High Court should be reluctant to interfere with
his conclusions. If two reasonable conclusions can be reached on the basis of
the evidence on record then the view in support of the acquittal of the accused
should be preferred. The fact that the High Court is inclined to take a
different view of the evidence on record is not sufficient to interfere with
the order of acquittal."
56. In Shivaji
Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793, the
Court observed thus:
aggrieved by the overturning of his acquittal deserves the final court's deeper
concern on fundamental principles of criminal justice......
........ But we
hasten to add even here that, although the learned judges of the High Court
have not expressly stated so, they have been at pains to dwell at length on all
the points relied on by the trial court as favourable to the prisoners for the
good reason that they wanted to be satisfied in their conscience whether there
was credible testimony warranting, on a fair consideration, a reversal of the
acquittal registered by the court below. In law there are no fetters on the
plenary power of the Appellate Court to review the whole evidence on which the
order of acquittal is founded and, indeed, it has a duty to scrutinise the
probative material de novo, informed, however, by the weighty thought that the
rebuttable innocence attributed to the accused having been converted into an
acquittal the homage our jurisprudence owes to individual liberty constrains
the higher court not to upset the holding without very convincing reasons and
comprehensive consideration, In our view the High Court's judgment survives
this exacting standard."
57. In Lekha Yadav v.
State of Bihar (1973) 2 SCC 424, the Court following the case of Sheo Swarup
(supra) again reiterated the legal position as under:
different phraseology used in the judgments of this Court such as- (a)
substantial and compelling reasons:
(b) good and
sufficiently cogent reasons;
(c) 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 but should express the reasons in its judgment which led it
to hold that the acquittal was not justified."
58. In Khem Karan
& Others v. State of U.P. & Another AIR 1974 SC 1567, this Court
possibilities nor remote possibilities nor mere doubts which are not reasonable
can, without danger to the administration of justice, be the foundation of the
acquittal of an accused person, if there is otherwise fairly credible
59. In Bishan Singh
& Others v. The State of Punjab (1974) 3 SCC 288, Justice Khanna speaking
for the Court provided the legal position:
41 "22. It is
well settled that the High Court in appeal under Section 417 of the CrPC has
full power to review at large the evidence on which the order of acquittal was
founded and to reach the conclusion that upon the evidence the order of
acquittal should be reversed. No limitation should be placed upon that power
unless is be found expressly stated be in the Code, but in exercising the power
conferred by the Code and before reaching its conclusion upon fact the High
Court should 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;
& (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."
60. In Umedbhai
Jadavbhai v. The State of Gujarat (1978) 1 SCC 228, the Court observed thus:
"In an appeal
against acquittal, the High Court would not ordinarily interfere with the Trial
Court's conclusion unless there are compelling reasons to do so inter alia on
account of manifest errors of law or of fact resulting in miscarriage of
61. In B.N. Mutto
& Another v. Dr. T.K. Nandi (1979) 1 SCC 361, the Court observed thus:
"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 42 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.
doubt", it has been remarked, "does not mean some light, airy,
insubstantial doubt that may flit through the minds of any of us about almost
anything at some time or other, it does not mean a doubt begotten by sympathy
out of reluctance to convict; it means a real doubt, a doubt founded upon
reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959
Criminal Law Review 584.]"
62. In Tota Singh
& Another v. State of Punjab (1987) 2 SCC 529, the Court reiterated the
same principle in the following words:
"This Court has
repeatedly pointed out that the mere fact that the appellate court is inclined
on a re-appreciation of the evidence to reach a conclusion which is at variance
with the one recorded in the order of acquittal passed by the court below will
not constitute a valid and sufficient ground for setting aside the acquittal.
The jurisdiction of
the appellate court in dealing with an appeal against an order of acquittal is
circumscribed by the limitation that no interference is to be made with the
order of 43 acquittal unless the approach made by the lower court to the
consideration of the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is such which could
not have been possibly arrived at by any court acting reasonably and
judiciously and is, therefore, liable to be characterised as perverse.
Where two views are
possible on an appraisal of the evidence adduced in the case and the court
below has taken a view which is a plausible one, the appellate court cannot
legally interfere with an order of acquittal even if it is of the opinion that
the view taken by the court below on its consideration of the evidence is
63. In Ram Kumar v.
State of Haryana 1995 Supp. (1) SCC 248, this Court had another occasion to
deal with a case where the court dealt with the powers of the High Court in
appeal from acquittal. The Court observed as under:
".. the High
Court should not have interfered with the order of acquittal merely because
another view on an appraisal of the evidence on record was possible. In this
connection it may be pointed out that the powers of the High Court in an appeal
from order of acquittal to reassess the evidence and reach its own conclusions
under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal
against the order of conviction. But as a rule of prudence, it is desirable
that the High Court should give proper weight and consideration to the view of
the trial court with regard to the credibility of the witness, the presumption
of innocence in favour of the accused, the right of accused to the benefit of
any doubt and the slowness of appellate court in justifying a finding of fact
arrived at by a judge who had the advantage of of seeing the witness. No doubt
it is settled law that if the main grounds on which the Court below has based
its order acquitting the accused, are reasonable and plausible, and the same
cannot entirely and 44 effectively be dislodged or demolished, the High Court
should not disturb the order of acquittal. We shall, therefore, examine the
evidence and the material on record to see whether the conclusions recorded by
the Trial Court in acquitting the appellant are reasonable and plausible or the
same are vitiated by some manifest illegality or the conclusion recorded by the
Trial Court are such which could not have been possibly arrived at by any Court
acting reasonably and judiciously which may in other words be characterized as
64. This Court time
and again has provided direction as to when the High Courts should interfere
with an acquittal. In Madan Lal v. State of J&K, (1997) 7 SCC 677, the
Court observed as under:
that there must be "sufficient and compelling reasons" or "good
and sufficiently cogent reasons" for the appellate court to alter an order
of acquittal to one of conviction........"
65. In Sambasivan
& Others v. State of Kerala (1998) 5 SCC 412, while relying on the case of
Ramesh Babulal Doshi (Supra), the Court observed thus:
7. The principles
with regard to the scope of the powers of the appellate court in an appeal
against acquittal, are well settled. The powers of the appellate court in an
appeal against acquittal are no less than in an appeal against conviction. But
where on the basis of evidence on record two views are reasonably possible the
appellate court cannot substitute its view in the place of that of the trial
court. It is only when the approach of the trial court 45 in acquitting an
accused is found to be clearly erroneous in its consideration of evidence on
record and in deducing conclusions therefrom that the appellate court can
interfere with the order of acquittal."
66. In Bhagwan Singh
& Others v. State of M.P. (2002) 4 SCC 85, the Court repeated one of the
fundamental principles of criminal jurisprudence 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 Court observed as under:- "7. 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 a Judge made guidelines for
circumspection. The paramount consideration of the court is to ensure that
miscarriage of justice is avoided."
67. In Harijana
Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad
(2002) 6 SCC 470, this Court again had an occasion to deal with the settled
principles of law 46 restated by several decisions of this Court. Despite a
number of judgments, High Courts continue to fail to keep them in mind before
reaching a conclusion. The Court observed thus:
principles to be kept in mind in our system of administration of criminal
justice are stated and restated in several decisions of this Court. Yet,
sometimes High Courts fail to keep them in mind before reaching a conclusion as
to the guilt or otherwise of the accused in a given case. The case on hand is
one such case. Hence it is felt necessary to remind about the well-settled principles
again. It is desirable and useful to remind and keep in mind these principles
in deciding a case.
11. In our
administration of criminal justice an accused is presumed to be innocent unless
such a presumption is rebutted by the prosecution by producing the evidence to
show him to be guilty of the offence with which he is charged. Further if two
views are possible on the evidence produced in the case, one indicating to the
guilt of the accused and the other to his innocence, the view favourable to the
accused is to be accepted. In cases where the court entertains reasonable doubt
regarding the guilt of the accused the benefit of such doubt should go in
favour of the accused. At the same time, the court must not reject the evidence
of the prosecution taking it as false, untrustworthy or unreliable on fanciful
grounds or on the basis of conjectures and surmises. The case of the
prosecution must be judged as a whole having regard to the totality of the
evidence. In appreciating the evidence the approach of the court must be
integrated not truncated or isolated. In other words, the impact of the
evidence in totality on the prosecution case or innocence of the accused has to
be kept in mind in coming to the conclusion 47 as to the guilt or otherwise of
the accused. In reaching a conclusion about the guilt of the accused, the court
has to appreciate, analyse and assess the evidence placed before it by the
yardstick of probabilities, its intrinsic value and the animus of witnesses. It
must be added that ultimately and finally the decision in every case depends
upon the facts of each case.
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 the 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." (emphasis supplied)
68. In C. Antony v.
K.G. Raghavan Nair, (2003) 1 SCC 1 had to reiterate the legal position in cases
where there has been acquittal by the trial courts. This Court observed thus:
"6. This Court
in a number of cases has held that though the appellate court has full power to
review the evidence upon which the order of acquittal is founded, still while
exercising such an 48 appellate power in a case of acquittal, the appellate
court, should not only consider every matter on record having a bearing on the
question of fact and the reasons given by the courts below in support of its
order of acquittal, it must express its reasons in the judgment which led it to
hold that the acquittal is not justified. In those line of cases this Court has
also held that the appellate court must also bear in mind the fact that the
trial court had the benefit of seeing the witnesses in the witness box and the
presumption of innocence is not weakened by the order of acquittal, and in such
cases 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
69. In State of
Karnataka v. K. Gopalkrishna, (2005) 9 SCC 291, while dealing with an appeal
against acquittal, the Court observed:
"In such an
appeal the Appellate Court does not lightly disturb the findings of fact
recorded by the Court below. If on the basis of the same evidence, two views
are reasonably possible, and the view favouring the accused is accepted by the
Court below, that is sufficient for upholding the order of acquittal. However,
if the Appellate Court comes to the conclusion that the findings of the Court
below are wholly unreasonable or perverse and not based on the evidence on
record, or suffers from serious illegality including ignorance or misreading of
evidence on record, the Appellate Court will be justified in setting aside such
an order of acquittal."
70. In The State of
Goa v. Sanjay Thakran, (2007) 3 SCC 755, this Court relied on the judgment in
State of Rajasthan v. Raja Ram (2003) 8 SCC 180 and observed as under:
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 principle to
be followed by appellate court considering the appeal against the judgment of
acquittal is to interfere only when there are compelling and substantial
reasons for doing so. If the impugned judgment is clearly unreasonable, it is a
compelling reason for interference."
The Court further
held as follows:
"16. it is
apparent that while exercising the powers in appeal against the order of
acquittal the court of appeal would not ordinarily interfere with the order of
acquittal unless the approach of the lower court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be characterized as
perverse. Merely because two views are possible, the court of appeal would not
take the view which would upset the judgment delivered by the court
71. In Chandrappa
& Others v. State of Karnataka (2007) 4 SCC 415, this Court held:
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. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved guilty by a
competent court of law.
Secondly, the accused
having secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
51 (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
72. The following
principles emerge from the cases above:
1. The appellate
court may review the evidence in appeals against acquittal under sections 378
and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence
is wide and the appellate court can reappreciate the entire evidence on record.
It can review the trial court's conclusion with respect to both facts and law.
2. The accused is
presumed innocent until proven guilty.
The accused possessed
this presumption when he was before the trial court. The trial court's
acquittal bolsters the presumption that he is innocent.
3. Due or proper
weight and consideration must be given to the trial court's decision. This is
especially true 52 when a witness' credibility is at issue. 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 trial court was wrong.
73. In light of the
above, the High Court and other appellate courts should follow the well settled
principles crystallized by number of judgments if it is going to overrule or
otherwise disturb the trial court's acquittal:
1. The appellate
court may only overrule or otherwise disturb the trial court's acquittal if it
has "very substantial and compelling reasons" for doing so.
A number of instances
arise in which the appellate court would have "very substantial and
compelling reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when:
i) The trial court's
conclusion with regard to the facts is palpably wrong;
53 ii) The trial
court's decision was based on an erroneous view of law;
iii) The trial
court's judgment is likely to result in "grave miscarriage of
iv) The entire
approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's
judgment was manifestly unjust and unreasonable;
vi) The trial court
has ignored the evidence or misread the material evidence or has ignored
material documents like dying declarations/ report of the Ballistic expert,
vii) This list is
intended to be illustrative, not exhaustive.
2. The Appellate
Court must always give proper weight and consideration to the findings of the
3. If two reasonable
views can be reached - one that leads to acquittal, the other to conviction -
the High Courts/appellate courts must rule in favour of the accused.
74. Had the well
settled principles been followed by the High Court, the accused would have been
set free long ago.
Though the appellate
court's power is wide and extensive, it must be used with great care and
75. We have
considered the entire evidence and documents on record and the reasoning given
by the trial court for acquitting the accused and also the reasoning of the
High Court for reversal of the judgment of acquittal. We have also dealt with a
number of cases decided by the Privy Council and this Court since 1934. In our
considered opinion, the trial court carefully scrutinized the entire evidence
and documents on record and arrived at the correct conclusion. We are clearly
of the opinion that the reasoning given by the High Court for overturning the
judgment of the trial court is wholly unsustainable and contrary to the settled
principles of law crystallized by a series of judgment.
76. On marshalling
the entire evidence and the documents on record, the view taken by the trial
court is certainly a possible and plausible view. The settled legal position as
explained above is that if the trial court's view is possible and plausible,
the High Court should not substitute the same by its own possible views. The
difference in treatment of the case by two courts below is particularly
noticeable in the manner in which they have dealt with the prosecution
evidence. While the trial court took great pain in discussing all important
material aspects and to record its opinion on every material and relevant
point, the learned Judges of the High Court have reversed the judgment of the
trial court without placing the very substantial reasons given by it in support
of its conclusion. The trial court after marshalling the evidence on record
came to the conclusion that there were serious infirmities in the prosecution's
story. Following the settled principles of law, it gave the benefit of doubt to
In the impugned
judgment, the High Court totally ignored the settled legal position and set
aside the well reasoned judgment of the trial court.
77. The trial court
categorically came to the finding that when the substratum of the evidence of
the prosecution witnesses was false, then the prosecution case has to be
discarded. When the trial court finds so many serious infirmities in the
prosecution version, then the trial court was virtually left with no choice but
to give benefit of doubt to the accused according to the settled principles of
78. On careful
analysis of the entire evidence on record, we are of the view that the reasons
given by the High Court for reversing the judgment of acquittal is
unsustainable and contrary to settled principles of law. The trial court has
the advantage of watching the demeanour of the witnesses who have given
evidence, therefore, the appellate court should be slow to interfere with the
decisions of the trial court. An acquittal by the trial court should not be
interfered with unless it is totally perverse or wholly unsustainable.
79. On consideration
of the totality of the circumstances, the appeal filed by the appellant is
allowed and the impugned 57 judgment passed by the High Court is set aside.
The appellant would be set at liberty forthwith unless required in any other
(R. V. Raveendran)
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