Murugan & ANR. Vs.
State by Pub. Prosecutor, Tamil Nadu & ANR  INSC 1668 (30 September
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICITON CRIMINAL APPEAL NO.1278 OF 2001
Murugan and Anr. ...Appellants Versus State Rep. by Public Prosecutor Madras,
Tamil Nadu & Anr. ...Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the learned Single Judge of the Madras
High Court setting aside the judgment of acquittal recorded by learned Principal,
Assistant Sessions Judge, Tirunelveli. The appellant faced trial along with one
Velliah for alleged commission of offences punishable under Section 307 and 307
read with Section 109 of the Indian Penal Code, 1860 (in short `IPC'). Though
the trial Court found that the prosecution has not established the case, in
appeal filed by the State it was held by the High Court that the prosecution
established the accusations against the appellants. But the acquittal so far as
the Velliah A3 is concerned, the High Court confirmed the acquittal.
facts in a nutshell are as follows:
Ramaiah (PW2) and Paramasivam (PW6) are brothers. They reside at Marugal
Accused 1 to 3 are
also residing in the same village. Their house is situated very near to the
house of PWs. 1, 2 and 6.
Accused 1 and 2 are
On 2.10.1989 at about
5.00 p.m. Kannammal, the mother of PWs. 1 and 2 went to the corner of the
street to collect water from the common water pipe. The third accused's wife
Manickam also came to take water. While collecting water from the common pipe,
there was a quarrel between Kannammal and Manickam, the wife of third accused.
Ramaiah (PW 2) who noticed this, went there and separated them and took his
mother to his house.
Next day i.e.
3.10.1989 at about 7.30 a.m. Ramaiah (PW.2), Sankaralingam (PW.1) and one
Manickam, wife of another brother, went to the well, which is situated in
Nallakannau Thevar's garden, in order to take bath. When the first accused came
to know about the occurrence which took place on the earlier day, he had
grievance against PW.2 thinking that PW.2 abused the wife of the third
respondent in support of his mother.
At about 7.30 a.m.
when PWs. 1 and 2 and another went near the well, A1 to A3 waylaid them. A1 and
A2 were having `Aruval' with them. A3 caught hold of PW.2 from behind his back.
At that time, A1 and A2 with `Aruval' attacked PW.2 indiscriminately on the
back, left shoulder, right shoulder, hands, etc. PW.2 received number of bleeding
injuries all over the body and began to cry. Sankaralingam (PW.1) and Poolu
Thevar (PW.5) and two others went near the injured. The accused persons
threatened them that they would kill them also. PW.2 swooned and fell on the
ground. Thereafter, the accused took to their heels.
PWs. 1 and 5 took the
victim in a car to Naguneri Government Hospital at about 8.30 a.m. Dr.
Andiappan (PW.3) examined the victim and found nine injuries. He also sent
Ex.P-2 intimation to the Nanguneri Police Station. Head Constable (PW.7) came
and recorded statement from PW.1.
Ex.P-1 is the
complaint and the same was registered against the accused for the offences
under Sections 341, 342 and 307 IPC. Ex.P-7 is the printed FIR. Doctor (PW.3)
sent the victim to the Tirunelveli Hospital for further treatment. He issued
Ex.P-3 wound certificate. Doctor (PW.4) took X-Ray and issued Ex.P-4 X-Ray
report and the X-Rays were marked as M.Os. 3 to 9.
4 Gnana Diraviyam
(PW.8), the Inspector of Police, took up further investigation and went to the
scene and examined the witnesses. He prepared Ex.P-5 observation mahazar and
Ex.P-8 rough sketch. He also recovered sample earth and blood stained earth.
Thereafter, he went to the hospital and recorded the statement from PW.2. Since
the PW.8 was subsequently transferred, Periasamy (PW.9) another Inspector of
Police, took up further investigation.
completion of investigation charge sheet was filed and the accused persons
faced trial as they denied the accusations. Nine witnesses were examined to
further the prosecution version. Trial court found the evidence of prosecution
witnesses to be not cogent and credible and accordingly directed acquittal.
State preferred appeal against acquittal. High Court found that the reasoning
indicated by the Trial Court to direct the acquittal cannot be maintained. It
is to be noted that the acquittal was directed by the Trial Court, inter alia,
on the following grounds:
(i) Recording of
Ex.P-1 statement given by PW.1 by PW.7 is doubtful. According to PW.3 Doctor,
the injured was conscious, when he was admitted in the hospital. PWs. 1 and 7
would state that the complaint was given by PW.1 which was recorded by PW.7,
since PW.2 was unconscious. There is no reason as to why PW.7 had to obtain
Ex.P-1 complaint from PW.1, when PW.2 was conscious.
(ii) PW.1 could not
have seen the occurrence. PW.5, an independent eye witness, would state that
PW.1 came to the scene only after the occurrence.
evidence of PW.1 is unreliable.
(iii) PW.6 stated in
the court that he had also seen the occurrence. According to PW.8, the
investigating officer, PW.6 was not the eye-witness and he did not give any
statement that he saw the occurrence.
evidence of PW.6 is unreliable.
(iv) PW.7 head
constable recorded Ex.P-1 and the same was written by him. But, in evidence, he
would state that he dictated to a constable and the said constable had written
the same. There is no evidence to show that any constable accompanied PW.7.
Therefore PW.7 had not recorded Ex.P-1 at the hospital.
(v) PW.5 an
independent witness, would state that A1 and A2 alone were present and attacked
PW.2. He did not refer about A3. Therefore, A3 could not have been present.
Furthermore, A3 produced a certificate alongwith his statement under Section
313 Cr.P.C. to show that during the relevant time, he was working in the mill
in which he was employed.
(vi) Both in Ex.P-1
and in the evidence of PWs.1 and 2, there is a reference about one Thangapandi
stating that he was also one of the eye-witnesses. The said eye-witness was not
examined. There is no reason for his non-examination.
(vii) According to
PWs.1 and 2, both A1 and A2 attacked PW.2 indiscriminately. But according to
PW.5, after first cut, PW.2 ran to a distance of about 50 feet and thereafter,
the further cuts given by the accused with `Aruval" fell on PW.2 victim.
So, there is a contradiction between the evidence of PWs.1 and 2 on the one
side and the evidence of PW.5 on the other side.
Court found that the conclusions arrived at by the Trial Court were not
sustainable. After analyzing the evidence of PWs. 1, 2 and 5 it was held that
the accusations have been established. Accordingly, the appellants were
convicted for the offence punishable under Section 307 IPC and each was
sentenced to undergo RI for four years and to pay a fine of Rs.5,000/- with
support of the appeal, learned counsel for the appellant submitted that the
Trial Court had rightly rejected the prosecution version taking note of the
fact that evidence of PWs 1, 2 and 5 are irreconcilable. It was also submitted
that the evidence of PWs. 1, 2 and 5 is contradictory to each other.
In any event, it was
submitted that the injuries were on non- vital parts and, therefore, Section
307 IPC has no application.
Learned counsel for
the respondent, on the other hand, supported the judgment of the High Court.
the doctor attached to the Naguneri Government Hospital, Tenkasi examined PW 2
at about 8.15 a.m. on 3.10.1989. He issued the wound certificate ExP3. He found
the following injuries on him:
"i. A bleeding
lacerated wound 10cm x 5 cm. x 4cm on medical aspect of right forearm muscles
and (NC) exposed.
ii. A bleeding
lacerated wound 3 cm x 1 cm x 1 cm in middle right forearm.
iii. A lacerated
bleeding wound in the palman aspect of 2 cm x 1 cm x 1 cm of right middle and
index finger 8 seen and lacerated wound on the tip of right ring and little
finger measuring 1 cm x 1 cm x 1 cm .
iv. An incised wound
3 cm x 2 cm x 1 cm in upper aspect of right arm.
v. A bleeding
lacerated wound in the left shoulder outer to the lateral end of left collar
bone 4 cm x 2 cm x 1 cm seen.
vi. A bleeding
incised wound in the upper part of left arm 3 cm x 1cm x = cm.
vii. A bleeding
incised wound 15 cm x 6 cm x 4 cm left side of back of chest just below left
viii. A bleeding
incised wound in the palman aspect of left index middle and ring finger and
thumb each measured 6 cm x 2 cm x 1 cm fracture of middle finger MCP joint.
ix. A bleeding
lacerated wound in the lateral aspect of left forearm 3 cm x 2 cm x 1 cm.
As per the wound
certificate Ex.P3, injury No.3 and 9 is grievous in nature and the other
injuries are simple injuries.
far as the evidence of PWs. 1, 2 and 5 is concerned, it is clear that P.W.2 was
indiscriminately attacked by Al and A2 with 'Aruval'. As a result of those
injuries, the victim (P.W.2) fell on the ground.
to P.W.5, as soon as P.W.2 fell on the ground, he became unconscious and
thereafter, the accused persons ran away from the scene. This occurrence took
place at about 7.30 A.M. and the victim was taken to the hospital at about 8.15
A.M. P.W.3 Doctor stated that the victim was conscious and the victim stated to
him that the he was attacked by three persons with 'Aruval'.
3 Doctor further stated that he gave Ex.P-2 intimation to the police, when P.W.
2 was admitted in the hospital. On receipt of Ex.P-2, P.W.7 Head constable
rushed to Nanguneri Government hospital. At that time, P.W.1 was present in the
hospital and gave Ex. P-1 statement to P.W.7.
is true that P.W.7 stated that he obtained Ex.P-1 complaint from P.W.1, when
P.W.2 was unconscious. P.W.1 stated that when P.W.2 victim was taken to the
hospital, he was in unconscious state and after admitting the victim in the
hospital, P.W. 3 Doctor gave treatment to him. So, when treatment was being
given by P.W.3 Doctor, P.W.7 came and at that time, he was informed by P.W. 1
that P.W. 2 was not in a position to give statement, since he was unconscious.
assuming that P.W.2 was conscious at that time, the nine serious injuries found
on various parts of the body of the victim would clearly show that he could not
have been able to give full details to P.W.7. Under those circumstances, obtaining
of Ex. P-1 complaint from P.W. 1 is quite proper.
because P.W.2 was conscious at that time, it cannot be said that the statement
should not have been recorded from P.W.1 and the same is doubtful. No law
prohibits the police officer from recording complaint relating to the
occurrence, that too, from an eye witness. The ground of acquittal as recorded
by trial Court is not at all a proper ground.
accordingly to the trial court, P.W. 1 could not have been seen the occurrence.
again is not the reasoning based on evidence.
According to both
P.Ws. 1 and 2, they went to take bath in the well one after another. P.W.5
stated that after hearing the cry of P.W.2, P.W.1 and others came to the scene.
This would not mean that P.W.1 did not accompany P.W.2. As a matter of fact,
even according to P.W.5, P.Ws. 1 and 5 took the victim in a taxi to Naguneri
occurrence took place in a day light at 7.30 A.M. The house of accused and
P.Ws. 1 & 2 are situated nearby and the well also is situated just two
furlongs away from the village. Under those circumstances, it cannot be said
1 could not have
accompanied P.W.2 to take bath. Therefore, this ground of acquittal was rightly
held by the High Court to be untenable.
find that the analysis made by the High Court to set aside the order does not
suffer from any infirmity. Learned counsel for the appellant submitted that an
appeal against the acquittal cannot be interfered by the Appellate Court except
for the compelling reasons.
appellants have questioned the correctness of the High Court's judgment.
According to them, the High Court had not kept in view the parameters of appeal
against acquittal. It is submitted that even if two views are possible, the
view supporting the accused had to be accepted and since the trial Court had
precisely done it and there was no reason to interfere with the judgment of the
view of rival submissions of the parties, we think it proper to consider and
clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code
of Criminal Procedure, 1973 (hereinafter referred to as "the present
Code") deals 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).
377 permits appeals by the State for enhancement of sentence. Section 378
confers power on the State to present an appeal to the High Court from an order
of acquittal. The said section is material and may be quoted in extenso:
"378. Appeal in
case of acquittal :(1) Save as otherwise provided in sub-section (2) and
subject to the provisions of sub-sections (3) and (5), 2 [(a) the District
Magistrate may, in any case, direct the Public Prosecutor to present an Appeal
to the Court of Session from an order of acquittal passed by a Magistrate in
respect of a cognizable and non-bailable offence;
(b) the State
Government may, in any case, direct the Public Prosecutor to present an Appeal
to the High Court from an original or appellate order of an acquittal passed by
any Court other than a High Court [not being an order under clause (a)] or an
order of acquittal passed by the Court of Session in revision.";].
(2) If such an order
of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to
make investigation into an offence under any Central Act other than this Code,
3 [the Central Government may, subject to the provisions of sub-section (3),
also direct the Public Prosecutor to present an Appeal-- (a) to the Court of
Session, from an order of acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court
from an original or appellate order of an acquittal passed by any Court other
than a High Court [not being an order under clause (a)] or an order of
acquittal passed by the Court of Session in revision].
(3) No Appeal under
sub-section (1) or sub- section (2) shall be entertained except with the leave
of the High Court.
(4) If such an order
of acquittal is passed in any case instituted upon complaint and the High
Court, on an application made to it by the complainant in this behalf, grants
special leave to Appeal from the order of acquittal, the complainant may
present such an Appeal to the High Court.
(5) No application
under sub-section (4) for the grant of special leave to Appeal from an order of
acquittal shall be entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and sixty days in every
other case, computed from the date of that order of acquittal.
(6) If, in any case,
the application under sub- section (4) for the grant of special leave to Appeal
from an order of acquittal is refused, no Appeal from that order of acquittal
shall lie under sub- section (1) or under sub-section (2).
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.
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
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,
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
contention, this Court said:
"We think this
criticism is well founded. After an order of acquittal has been made the
presumption of innocence is further reinforced by that order, and that being
so, the trial court's decision can be reversed not on the ground that the
accused had failed to explain the circumstances appearing against him but only
for very substantial and compelling reasons."
Atley v. State of U.P. (AIR 1955 SC 807) this Court said:
"In our opinion,
it is not correct to say that unless the appellate court in an appeal under
Section 417, Criminal Procedure Code came to the conclusion that the judgment
of acquittal under appeal was perverse it could not set aside that order.
It has been laid down
by this Court that it is open to the High Court on an appeal against an order
of acquittal to review the entire evidence and to come to its own conclusion,
of course, keeping in view the well-established rule that the presumption of
innocence of the accused is not weakened but strengthened by the judgment of
acquittal passed by the trial court which had the advantage of observing the
demeanour of witnesses whose evidence have been recorded in its presence.
It is also well
settled that the court of appeal has as wide powers of appreciation of evidence
in an appeal against an order of acquittal as in the case of an appeal against
an order of conviction, subject to the riders that the presumption of innocence
with which the accused person starts in the trial court continues even up to
the appellate stage and that the appellate court should attach due weight to
the opinion of the trial court which recorded the order of acquittal.
If the appellate
court reviews the evidence, keeping those principles in mind, and comes to a
contrary conclusion, the judgment cannot be said to have been vitiated."
34. In Aher Raja
Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was prosecuted
under Sections 302 and 447 IPC. He was acquitted by the trial court but
convicted by the High Court. Dealing with the power of the High Court against
an order of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p.
220, para 1) "It is, in our opinion, well settled that it is not enough
for the High Court to take a different view of the evidence; there must also be
substantial and compelling reasons for holding that the trial court was
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."
Court concluded as follows:
foregoing discussion yields the following results: (1) an appellate court has
full power to review the evidence upon which the order of acquittal is founded;
(2) the principles laid down in Sheo Swarup case afford a correct guide for the
appellate court's approach to a case in disposing of such an appeal; and (3)
the different phraseology used in the judgments of this Court, such as, (i)
`substantial and compelling reasons', (ii) `good and sufficiently cogent
reasons', and (iii) `strong reasons' are not intended to curtail the undoubted
power of an appellate court in an appeal against acquittal to review the entire
evidence and to come to its own conclusion; but in doing so it should not only
consider every matter on record having a bearing on the questions of fact and
the reasons given by the court below in support of its order of acquittal in
its arriving at a conclusion on those facts, but should also express those
reasons in its judgment, which lead it to hold that the acquittal was not
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 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 29 cautious because as Lord Russell observed in
Sheo Swarup the presumption of innocence in favour of the accused `is not
certainly weakened by the fact that he has been acquitted at his trial'.
Therefore, the test suggested by the expression `substantial and compelling
reasons' should not be construed as a formula which has to be rigidly applied
in every case. That is the effect of the recent decisions of this Court, for
instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of
Punjab (1962 Supp 1 SCR 104) and so, it is not necessary that before reversing
a judgment of acquittal, the High Court must necessarily characterise the
findings recorded therein as perverse."
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 comprehensive consideration."
emphasis on balance between importance of individual liberty and evil of
acquitting guilty persons, this Court observed as follows:
"6. Even at this
stage we may remind ourselves of a necessary social perspective in criminal
cases which suffers from insufficient forensic appreciation. The dangers of
exaggerated devotion to the rule of benefit of doubt at the expense of social
defence and to the soothing sentiment that all acquittals are always good
regardless of justice to the victim and the community, demand especial emphasis
in the contemporary context of escalating crime and escape. The judicial
instrument has a public accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs thro' the web of our law
should not be stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected in the attitude that a thousand
guilty men may go but one innocent martyr shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused.
practical system of justice will then breakdown and lose credibility with the
community. The evil of acquitting a guilty person 31 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 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
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 33
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, manifestly erroneous or demonstrably unsustainable. If the appellate
court answers the above question in the negative the order of acquittal is not
to be 34 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 admissible evidence. Only because the accused has
been acquitted by the trial court, cannot be made a basis to urge that the High
Court under all circumstances should not disturb such a finding."
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 36 arise
from the acquittal of the guilty is no less than from the conviction of an
innocent. In a case where the trial court has taken a view ignoring the
admissible evidence, a duty is cast upon the High Court to reappreciate the
evidence in acquittal appeal for the purposes of ascertaining as to whether all
or any of the accused has committed any offence or not".
Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470,
this Court said:
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 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 38 the power exercised while hearing appeals against conviction. In
both types of appeals, the power exists to review the entire evidence.
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."
46. From the above decisions, in Chandrappa and Ors. v. State of Karnataka
(2007 (4) SCC 415), the following general principles regarding powers of the
appellate court while dealing with an appeal against an order of acquittal were
(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. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that
every person shall be presumed 40 to be innocent unless he is proved guilty by
a competent court of law. Secondly, the accused having secured his acquittal,
the presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable
conclusions are possible on the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal recorded by the trial court.
person has, no doubt, a profound right not to be convicted of an offence which
is not established by the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, however, no absolute
standard. What degree of probability amounts to "proof" is an
exercise particular to each case. Referring to the interdependence of evidence
and the confirmation of one piece of evidence by another, a learned author says
[see "The Mathematics of Proof II": Glanville Williams, Criminal Law
Review, 1979, by Sweet and Maxwell, p.340 (342)]:
41 "The simple
multiplication rule does not apply if the separate pieces of evidence are
Two events are
dependent when they tend to occur together, and the evidence of such events may
also be said to be dependent. In a criminal case, different pieces of evidence
directed to establishing that the defendant did the prohibited act with the
specified state of mind are generally dependent. A junior may feel doubt
whether to credit an alleged confession, and doubt whether to infer guilt from
the fact that the defendant fled from justice. But since it is generally guilty
rather than innocent people who make confessions, and guilty rather than
innocent people who run away, the two doubts are not to be multiplied together.
The one piece of evidence may confirm the other."
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) and in Criminal Appeal No. 572 of 2001 entitled
Valson & Anr. v. State of Kerala (decided on 01st August, 2008).
51. When the factual
position is analysed in the background of the conclusions arrived at by the
High Court, the inevitable conclusion is that the High Court's judgment is
correct. The appeal is dismissed. The appellants who are directed to be
released on bail by order dated 10.12.2001, shall surrender to custody
forthwith to serve the remainder of sentence.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)
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