State of U.P. Vs.
Awdesh [2008] INSC 1528 (9 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 803 OF 2001 State
of U.P. ..Appellant versus Awdhesh ..Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Allahabad High
Court setting aside the conviction of the respondent for offence punishable
under Section 396 of the Indian Penal Code, 1860 (in short the `IPC') as was
recorded by learned Vth Additional Sessions Judge, Fatehpur. The respondent was
sentenced to imprisonment for life by the said judgment; but he was acquitted
of the charge relatable to offence punishable under Section 314 IPC.
2.
Background
facts in a nutshell are as under:
A dacoity was
committed on 9.5.1973 at about mid day for about 2-3 hours in the house of
three brothers namely Ramdas (PW-9), Har Prasad (PW-2) and Hiralal (hereinafter
referred to as the `deceased') in village Palia Buzurg within the area of
police station Hathgaon, district Fatehpur. It was alleged that about 16-17
dacoits successfully decamped with cash, jewellery, ornaments, firearms etc.
During the course of commission of dacoity, Hiralal, Mahesh Chandra and Smt.
Mahabiria sustained injuries of whom Hiralal died.
While dacoity was in
operation, the matter was reported orally at police station, Hathgaon by
village chowkidar Ram Ratan (P.W. 3) on the same day at 1.30 P.M. wherein none
was named. Head Moharrir Fateh Bahadur Singh (P.W. 1) recorded 2 the report in
chick register and registered case under Section 395/397 IPC. Station Officer
Yadram Verma (P.W. 29) took up investigation and he immediately proceeded to
the scene of occurrence. He met injured Hiralal, Mahesh Chandra and Smt.
Mahabiria on the way. He got the said injured sent for their medical
examination with "chithi majroobi". When the injured persons were
being taken to hospital, Hiralal succumbed to his injuries. The constable who
was escorting the injured then gave information at police station about the
death of Hiralal, whereupon case was converted to one under Section 396 IPC.
When the
investigating officer reached the place of occurrence, Har Parsed (P.W. 2)
handed over to him a list of stolen articles and also a report giving out details
of commission of dacoity in his house wherein he named three persons, namely
respondent Awdhesh, Ram Rattan alias Jhallar and Babu Singh. The investigating
officer recorded the statements of witnesses on 10.5.1973, arrested named as
well as some unknown persons during the course of investigation and some stolen
articles were alleged to have been recovered from respondent Awdhesh and other
accused. On completion of investigation charge sheet was submitted.
3.
Since
the accused persons abjured guilt they were put on trial. It is to be noted
that originally three persons were named as accused and reference was made to 9
unknown persons.
One of them died
during trial, and one died during pendency of the appeal before the High Court.
Respondent was accused No.4. In order to further its version prosecution
examined 29 witnesses. Placing reliance on testimony of Har Prasad (PW-2), Ram
Lakhan (PW-7), Smt. Sheo Sakhi (PW-11) and Smt. Ram Rati (PW-12) the trial
Court directed conviction as noted above.
4.
Stand
of the appellant before the High Court was that accused persons were admittedly
on inimical terms with Har Prasad (PW-2) and it was a specific case that
accused Babu Singh had absconded and did not face trial. He was on inimical
terms with the deceased and PW-2. Respondent Awdhesh happened to be brother in
law of Babu Singh. The trial Court held that the accusations have been
established. In appeal before the High Court it was noted that the enmity
aspect was lost sight of by the Trial Court. In any event, for a long time no
witness supposedly spoke about accused Awdhesh. Though the village Chowkidar,
Ram Ratan (PW-3) reported the matter to the police station on the basis of
which Crime case No.30 was registered, no one was named as accused and the case
was registered against unknown persons. Only when a written report was
submitted by Har Prasad (PW-2) to the investigating officer, name of respondent
was indicated alongwith Babu Singh and Jhallar Singh. It was pointed out that
though PW-2 was shouting that three named persons were committing dacoity, in
the report submitted by PW-3 the names were not given. Reference was also made
to the evidence of Ram Lakhan (PW-4) who admitted that he never mentioned the
names of the three persons whose names appeared in the report given by PW-2.
With reference to the evidence of Smt. Sheo Sakhi, the High Court noticed that
she did not know Awdesh, yet stated as if she was acquainted with him. Her
statement in the cross examination was highlighted by the High Court. Similar
was the position regarding Smt.
Ram Rati (PW-12). The
investigating officer stated that when he was going to the place of occurrence,
he had met the deceased and two other persons who received injuries in the
occurrence. They were Mahesh Chandra and Smt. Mahabiria.
He had a talk with
them and he sent them for medical examination. But till that time also the
names of Awdhesh, Babu Singh and Jhallar Singh were not disclosed. Primarily,
on these premises the High Court directed acquittal.
5.
The
High Court also referred to the fact that while some of the alleged dacoits
covered their faces to conceal the identity; the three named accused persons
who were known did not try to cover their faces.
6.
Learned
counsel for the appellant-State submitted that the reasoning indicated by the
High Court does not justify the order of acquittal. Most of the reasonings are
based on surmises and conjectures. Particular reference is made to the evidence
of PW-3. The High Court found that in the report submitted by PW-2 there was no
reference to the three named accused persons.
7.
It
is pointed out that the witnesses on hearing about the dacoity had rushed to
the police station and had no occasion to know the names of accused persons.
The parameters for dealing with an appeal against judgment of acquittal have
been laid down by this Court in several cases.
8.
It
would be appropriate 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 Code") deals with appeals. Section 372 expressly
declares that no appeal shall lie from any judgment or order of a criminal
court except as provided by the Code or by any other law for the time being in
force. Section 373 provides for filing of appeals in certain cases. Section 374
allows appeals from convictions. Section 375 bars appeals in cases where the
accused pleads guilty. Likewise, no appeal is maintainable in petty cases
(Section 376). Section 377 permits appeals by the State for enhancement of
sentence. Section 378 confers power on the State to present an appeal to the
High Court from an order of acquittal. The said section is material and may be
quoted in extenso:
"378. Appeal in
case of acquittal.--(1) Save as otherwise provided in sub-section (2) and subject
to the provisions of sub-sections (3) and (5), the State Government may, in any
case, direct the Public Prosecutor to present an appeal to the High Court from
an original or appellate order of acquittal passed by any court other than a
High Court, or an order of acquittal passed by the Court of Session in
revision.
(2) If such an order
of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered
to make investigation into an offence under any Central Act other than this
Code, the Central Government may also direct the Public Prosecutor to present
an appeal, subject to the provisions of sub-section (3), to the High Court from
the order of acquittal.
(3) No appeal under
sub-section (1) or sub- section (2) shall be entertained except with the leave
of the High Court.
8 (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).
9.
Whereas
Sections 379-380 cover special cases of appeals, other sections lay down
procedure to be followed by appellate courts.
10.
It
may be stated that more or less similar provisions were found in the Code of
Criminal Procedure, 1898 (hereinafter referred to as "the old Code")
which came up for consideration before various High Courts, Judicial Committee
of the Privy Council as also before this Court. Since in the present appeal, we
have been called upon to decide the ambit and scope of the power of an
appellate court in an appeal against an order of acquittal, we have confined
ourselves to one aspect only i.e. an appeal against an order of acquittal.
11.
Bare
reading of Section 378 of the 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.
12.
It
cannot, however, be forgotten that in case of acquittal, there is a double
presumption in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that
every person should be presumed to be innocent unless he is proved to be guilty
by a competent court of law. Secondly, the accused having secured an acquittal,
the presumption of his innocence is certainly not weakened but reinforced,
reaffirmed and strengthened by the trial court.
13.
Though
the above principles are well established, a different note was struck in
several decisions by various High Courts and even by this Court. It is,
therefore, appropriate if we consider some of the leading decisions on the
point.
14.
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
Code). At the time of hearing of appeal before the High Court, it was contended
on behalf of the accused that in an appeal from an order of acquittal, it was
not open to the appellate court to interfere with the findings of fact recorded
by the trial Judge unless such findings could not have been reached by him had
there not been some perversity or incompetence on his part. The High Court,
however, declined to accept the said view. It held that no condition was
imposed on the High Court in such appeal. It accordingly reviewed all the
evidence in the case and having formed an opinion of its weight and reliability
different from that of the trial Judge, recorded an order of conviction. A
petition was presented to His Majesty in Council for leave to appeal on the
ground that conflicting views had been expressed by the High Courts in
different parts of India upon the question whether in an appeal from an order
of acquittal, an appellate court had the power to interfere with the findings
of fact recorded by the trial Judge. Their Lordships thought it fit to clarify
the legal position and accordingly upon the "humble advice of their
Lordships", leave was granted by His Majesty. The case was, thereafter,
argued. The Committee considered the scheme and interpreting Section 417 of the
Code (old Code) observed that there was no indication in the Code of any
limitation or restriction on the High Court in exercise of powers as an
Appellate Tribunal. The Code also made no distinction as regards powers of the
High Court in dealing with an appeal against acquittal and an appeal against
conviction. Though several authorities were cited revealing different views by
the High Courts dealing with an appeal from an order of acquittal, the
Committee did not think it proper to discuss all the cases.
15.
Lord
Russel summed up the legal position thus:
"There is, in
their opinion, no foundation for the view, apparently supported by the
judgments of some courts in India, that the High Court has no power or
jurisdiction to reverse an order of acquittal on a matter of fact, except in
cases in which the lower court has `obstinately blundered', or has `through
incompetence, stupidity or perversity' reached such `distorted conclusions as
to produce a positive miscarriage of justice', or has in some other way so
conducted or misconducted itself as to produce a glaring miscarriage of
justice, or has been tricked by the defence so as to produce a similar
result."
16.
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."
17.
The
Committee, however, cautioned appellate courts and stated: (IA p.404) "But
in exercising the power conferred by the Code and before reaching its
conclusions upon fact, the High Court should and will always give proper weight
and consideration to such matters as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of innocence in favour of the
accused, a presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of any
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 14 known and
recognised in the administration of justice."
(emphasis supplied)
18.
In
Nur Mohd. v. Emperor (AIR 1945 PC 151), the Committee reiterated the above view
in Sheo Swarup (Supra) and held that in an appeal against acquittal, the High
Court has full powers to review and to reverse acquittal.
19.
So
far as this Court is concerned, probably the first decision on the point was
Prandas v. State (AIR 1954 SC 36) (though the case was decided on 14-3-1950, it
was reported only in 1954). In that case, the accused was acquitted by the
trial court. The Provincial Government preferred an appeal which was allowed
and the accused was convicted for offences punishable under Sections 302 and
323 IPC. The High Court, for convicting the accused, placed reliance on certain
eyewitnesses.
20.
Upholding
the decision of the High Court and following the proposition of law in Sheo
Swarup (supra), a six-Judge Bench held as follows:
"6. It must be
observed at the very outset that we cannot support the view which has been
expressed in several cases that the High Court has no power under Section 417,
Criminal Procedure Code, to reverse a judgment of acquittal, unless the
judgment is perverse or the subordinate court has in some way or other
misdirected itself so as to produce a miscarriage of justice."
(emphasis supplied)
21.
In
Surajpal Singh v. State (1952 SCR 193), a two-Judge Bench observed that it was
well established that in an appeal under Section 417 of the (old) Code, the
High Court had full power to review the evidence upon which the order of
acquittal was founded. But it was equally well settled that the presumption of
innocence of the accused was further reinforced by his acquittal by the trial
court, and the findings of the trial court which had the advantage of seeing
the witnesses and hearing their evidence could be reversed only for very
substantial and compelling reasons.
22.
In
Ajmer Singh v. State of Punjab (1953 SCR 418) the accused was acquitted by the
trial court but was convicted by the High Court in an appeal against acquittal
filed by the State. The aggrieved accused approached this Court. It was
contended by him that there were "no compelling reasons" for setting
aside the order of acquittal and due and proper weight had not been given by
the High Court to the opinion of the trial court as regards the credibility of
witnesses seen and examined. It was also commented that the High Court
committed an error of law in observing that "when a strong `prima facie'
case is made out against an accused person it is his duty to explain the
circumstances appearing in evidence against him and he cannot take shelter
behind the presumption of innocence and cannot state that the law entitles him
to keep his lips sealed".
23.
Upholding
the contention, this Court said:
17 "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."
(emphasis supplied)
24.
In
Atley v. State of U.P. (AIR 1955 SC 807) this Court said:
"In our opinion,
it is not correct to say that unless the appellate court in an appeal under
Section 417, Criminal Procedure Code came to the conclusion that the judgment
of acquittal under appeal was perverse it could not set aside that order.
It has been laid down
by this Court that it is open to the High Court on an appeal against an order
of acquittal to review the entire evidence and to come to its own conclusion,
of course, keeping in view the well-established rule that the presumption of innocence
of the accused is not weakened but strengthened by the judgment of acquittal
passed by the trial court which had the advantage of observing the demeanour of
witnesses whose evidence have been recorded in its presence.
18 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."
(emphasis supplied)
25.
In
Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was
prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court
but convicted by the High Court. Dealing with the power of the High Court
against an order of acquittal, Bose, J. speaking for the majority (2:1) stated:
(AIR p. 220, para 1) "It is, in our opinion, well settled that it is not
enough for the High Court to take a different view of the evidence; there must
also be substantial and compelling reasons for holding that the trial court was
wrong."
19 (emphasis
supplied)
26.
In
Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a three-Judge Bench
considered almost all leading decisions on the point and observed that there
was no difficulty in applying the principles laid down by the Privy Council and
accepted by the Supreme Court. The Court, however, noted that appellate courts
found considerable difficulty in understanding the scope of the words
"substantial and compelling reasons" used in certain decisions. It
was observed inter-alia as follows:
"This Court
obviously did not and could not add a condition to Section 417 of the Criminal
Procedure Code. The words were intended to convey the idea that an appellate
court not only shall bear in mind the principles laid down by the Privy Council
but also must give its clear reasons for coming to the conclusion that the
order of acquittal was wrong."
The Court concluded
as follows:
"9. The
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
20 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
justified."
27.
Again,
in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405, the point was raised
before a Constitution Bench of this Court. Taking note of earlier decisions, it
was observed as follows:
"17. In some of
the earlier decisions of this Court, however, in emphasising the importance of
adopting a cautious approach in dealing with appeals against acquittals, it was
observed that the presumption of innocence is reinforced by the order of
acquittal and so, `the findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence can be reversed only for very
substantial and compelling reasons': vide Surajpal Singh v. State (1952 SCR
193). Similarly in Ajmer Singh v. State of Punjab (1953 SCR 418), it was
observed that the interference of the High Court in an appeal against the order
of acquittal would be justified only if there are `very substantial and
compelling reasons to do so'. In some other decisions, it has been stated that
an order of acquittal can be reversed only for `good and sufficiently cogent
reasons' or for `strong reasons'. In appreciating the effect of these
observations, it must be remembered that these observations were not intended to
lay down a rigid or inflexible rule which should govern the decision of the
High Court in appeals against acquittals. They were not intended, and should
not be read to have intended to introduce an additional condition in clause (a)
of Section 423(1) of the Code. All that the said observations are intended to
emphasize is that the approach of the High Court in dealing with an appeal
against acquittal ought to be cautious because as Lord Russell observed in Sheo
Swarup the presumption of innocence in favour of the accused `is not certainly
weakened by the fact that he has been acquitted at his trial'. Therefore, the
test suggested by the expression `substantial and compelling reasons' should
not be construed as a formula which has to be rigidly applied in every case.
That is the effect of the recent decisions of this Court, for instance, in
Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of Punjab (1962
Supp 1 SCR 104) and so, it is not necessary that before reversing a judgment of
acquittal, the High Court must necessarily characterise the findings recorded
therein as perverse."
(emphasis supplied)
22
28.
Yet
in another leading decision in Shivaji Sahabrao Bobade v. State of Maharashtra
(1973 (2) SCC 793) this Court held that in India, there is no jurisdictional
limitation on the powers of appellate court. "In law there are no fetters
on the plenary power of the appellate court to review the whole evidence on
which the order of acquittal is founded and, indeed, it has a duty to
scrutinise the probative material de novo, informed, however, by the weighty
thought that the rebuttable innocence attributed to the accused having been
converted into an acquittal the homage our jurisprudence owes to individual
liberty constrains the higher court not to upset the holding without very
convincing reasons and comprehensive consideration."
29.
Putting
emphasis on balance between importance of individual liberty and evil of
acquitting guilty persons, this Court observed as follows:
"6. Even at this
stage we may remind ourselves of a necessary social perspective in criminal
cases which suffers from insufficient forensic appreciation. The dangers of
exaggerated devotion to the rule of benefit of doubt at the expense of social
defence and to the soothing sentiment that all acquittals are always good
regardless of justice to the victim and the community, demand especial emphasis
in the contemporary context of escalating crime and escape. The judicial
instrument has a public accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs thro' the web of our law
should not be stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected in the attitude that a thousand
guilty men may go but one innocent martyr shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused.
Otherwise any
practical system of justice will then breakdown and lose credibility with the
community. The evil of acquitting a guilty person light-heartedly, as a learned
author (Glanville Williams in Proof of Guilt) has saliently observed, goes much
beyond the simple fact that just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead to a cynical disregard
of the law, and this in turn leads to a public demand for harsher legal
presumptions against indicted `persons' and more severe punishment of those who
are found guilty. Thus, too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection of the
guiltless.
For all these reasons
it is true to say, with Viscount Simon, that `a miscarriage of justice may
arise from the acquittal of the guilty no less than from the conviction of the
innocent....' In short, our jurisprudential enthusiasm for presumed innocence
must be moderated by the pragmatic need to make criminal justice potent and 24
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."
(emphasis supplied)
30.
In
K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the Court was considering the
power of the High Court against an order of acquittal under Section 378 of the
Code. After considering the relevant decisions on the point it was stated as
follows:
"9. The
principles are now well settled. At one time it was thought that an order of
acquittal could be set aside for `substantial and compelling reasons' only and
courts used to launch on a search to discover those `substantial and compelling
reasons'. However, the `formulae' of `substantial and compelling reasons',
`good and sufficiently cogent reasons' and `strong reasons' and the search for
them were abandoned as a result of the pronouncement of this Court in Sanwat
Singh v. State of Rajasthan (1961) 3 SCR 120. In Sanwat Singh case this Court
harked back to the principles enunciated by the Privy Council in Sheo Swarup v.
R. Emperor and reaffirmed those principles. After Sanwat Singh v.
State of Rajasthan
this Court has consistently recognised the right of the appellate court to
review the entire evidence and to come to its own conclusion bearing in mind
the considerations mentioned by the Privy Council in Sheo Swarup case.
Occasionally phrases like `manifestly illegal', `grossly unjust', have been
used to describe the orders of acquittal which warrant interference. But, such
expressions have been used more as flourishes of language, to emphasise the
reluctance of the appellate court to interfere with an order of acquittal than
to curtail the power of the appellate court to review the entire evidence and
to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of
A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh v. State of Maharashtra (AIR 1974
SC 286), it has been said that to the principles laid down in Sanwat Singh case
may be added the further principle that `if two reasonable conclusions can be
reached on the basis of the evidence on record, the appellate court should not
disturb the finding of the trial court'. This, of course, is not a new
principle. It stems out of the fundamental principle of our criminal
jurisprudence that the accused is entitled to the benefit of any reasonable
doubt. If two reasonably probable and evenly balanced views of the evidence are
possible, one must necessarily concede the existence of a reasonable doubt.
But, fanciful and remote possibilities must be left out of account. To entitle
an accused person to the benefit of a doubt arising from the possibility of a
duality of views, the possible view in favour of the accused must be as nearly
reasonably probable as that against him. If the preponderance of probability is
all one way, a bare possibility of another view will not entitle the accused to
claim the benefit of any doubt. It is, therefore, essential that any view of
the evidence in favour of the accused must be 26 reasonable even as any doubt,
the benefit of which an accused person may claim, must be reasonable."
(emphasis supplied)
31.
In
Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said:
"While sitting
in judgment over an acquittal the appellate court is first required to seek an
answer to the question whether the findings of the trial court are palpably
wrong, manifestly erroneous or demonstrably unsustainable. If the appellate
court answers the above question in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate court holds, for reasons to be
recorded, that the order of acquittal cannot at all be sustained in view of any
of the above infirmities it can then-and then only-reappraise the evidence to
arrive at its own conclusions."
32.
In
Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, referring to earlier
decisions, the Court stated:
"7. The
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 27 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."
33.
In
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 28 acquittal is that the Court has full powers to
review the evidence upon which an order of acquittal is based and generally it
will not interfere with the order of acquittal because by passing an order of
acquittal the presumption of innocence in favour of the accused is reinforced.
The golden thread
which runs through the web of administration of justice in criminal case is
that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but judge-made guidelines for
circumspection. The paramount consideration of the court is to ensure that
miscarriage of justice is avoided. A miscarriage of justice which may arise
from the acquittal of the guilty is no less than from the conviction of an
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".
34.
In
Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470,
this Court said:
"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 29 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."
35.
In
Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court observed:
"21. There is no
embargo on the appellate court reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal shall not be interfered
with because the presumption of innocence of the accused is further strengthened
by acquittal. The golden thread which runs through the web of administration of
justice in criminal cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be adopted.
The paramount consideration of the court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may 30 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".
36.
Again
in Kallu v. State of M.P. (2006) 10 SCC 313, this Court stated:
"8. While
deciding an appeal against acquittal, the power of the appellate court is no
less than the power exercised while hearing appeals against conviction. In both
types of appeals, the power exists to review the entire evidence.
However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the trial court is based on
evidence and the view taken is reasonable and plausible. It will not reverse
the decision of the trial court merely because a different view is possible.
The appellate court will also bear in mind that there is a presumption of
innocence in favour of the accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to interfere, it should assign
reasons for differing with the decision of the trial court."
(emphasis supplied)
37.
From
the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC
415), the following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal were culled out:
(1) An appellate
court has full power to review, 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.
(3) Various
expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court 32 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.
(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.
38.
A
person has, no doubt, a profound right not to be convicted of an offence which
is not established by the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, however, no absolute
standard. What degree of probability amounts to "proof" is an
exercise particular to each case. Referring to the interdependence of evidence
and the confirmation of one piece of evidence by another, a learned author says
[see "The Mathematics of Proof II": Glanville Williams, Criminal Law
Review, 1979, by Sweet and Maxwell, p.340 (342)]:
"The simple
multiplication rule does not apply if the separate pieces of evidence are
dependent.
Two events are
dependent when they tend to occur together, and the evidence of such events may
also be said to be dependent. In a criminal case, different pieces of evidence
directed to establishing that the defendant did the prohibited act with 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."
39.
Doubts
would be called reasonable if they are free from a zest for abstract
speculation. Law cannot afford any favourite other than truth. To constitute
reasonable doubt, it must be free from an overemotional response. Doubts must
be actual and substantial doubts as to the guilt of the accused persons arising
from the evidence, or from the lack of it, as opposed to mere 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.
40.
The
concepts of probability, and the degrees of it, cannot obviously be expressed
in terms of units to be mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an unmistakable subjective
element in the evaluation of the degrees of probability and the quantum of
proof. Forensic probability must, in the last analysis, rest on a robust common
sense and, ultimately, on the trained intuitions of the Judge. While the
protection given by the criminal process to the accused persons is not to be
eroded, at the same time, uninformed legitimization of trivialities would make
a mockery of administration of criminal justice. This position was
illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State
of U.P. v. Krishna Gopal (1988 (4) SCC 302).
41.
The
above position was highlighted in Krishnan and Anr. v. State represented by
Inspector of Police (2003 (7) SCC 56).
42.
In
the present case, though the judgment is not happily worded and some of the
reasonings are not legally supportable but the ultimate conclusion is a
possible view. That being so, we decline to interfere in this appeal which is
dismissed. The bail bond executed in the present case by the respondent shall
stand discharged.
....................................J.
(Dr. ARIJIT PASAYAT)
....................................J.
(P. SATHASIVAM)
....................................J.
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