Nepal Singh Vs. State
of Haryana [2009] INSC 817 (24 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.383 OF 2002 Nepal
Singh ....Appellant Versus State of Haryana ....Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Punjab and Haryana
High Court convicting the appellant for offences punishable under Sections
304-B, 498-A of the Indian Penal Code, 1860 (in short the `IPC'). He was
sentenced to undergo rigorous imprisonment for seven years and to pay a fine
with default 1 stipulation for the first offence. But no separate sentence was
awarded in respect of the later offence. The appellant faced trial before
learned Sessions Judge, Narnaul, and was acquitted by learned Sessions Judge
giving him the benefit of doubt. The State Government preferred an appeal which
was allowed by the High Court.
2.
Prosecution
version in a nutshell is as follows:
The marriage of Manju
(hereinafter referred to as the `deceased') was solemnised with appellant-Nepal
Singh on 26.1.1989. Though Yudhishter Singh (PW5) the father of the deceased
had spent sufficient money for the marriage, accused Nepal Singh was not
satisfied with the dowry. He demanded a gas connection which deceased conveyed
to her mother Lajwant (PW6) on which her father (PW5) got the gas connection
and gave it to Manju.
On 16.5.1991,
deceased had come to Bapora (village of her father) to attend the marriage of
the daughter of Shyam Pal Singh (brother of her father). Deceased told her
father (PW5) and mother (PW6) that accused had completed his course and wanted
her to bring Rs. One lakh from them and that if she failed to do so, accused
would turn her out of the house.
Yudhishter Singh
(PW5) told her that he would arrange for the money.
On 23.5.1991 deceased
left for Kanti (village of her in-laws) accompanied by Sunil Kumar (PW7), her
brother. While going, deceased told her father to arrange for the money
otherwise her in laws would not allow her to live.
Since Yudhishter
Singh (PW5) could not arrange money, Manju had committed suicide by consuming
some poisonous substance. On receiving information on 26.5.1991, Yudhishter
Singh (PW5) alongwith Sarpanch- Mitter Pal and Head Constable Rohtas Singh
(PW3) met SI-Ramji Lal (PW8) at the bus stand of Ateli and Yudhishter Singh
(PW5) made the above said statement which formed the basis for registering the
formal FIR.
Investigation was
undertaken.
After investigation
was completed, charge sheet was filed. Since the accused pleaded innocence,
trial was held. The prosecution primarily relied upon the evidence of
Yudhishter Singh (PW5) father of the deceased and Lajwant (PW6) mother of the
deceased and Sunil Kumar (PW7) brother of the deceased. The trial court found
that this was a case of suicide and little physical contact between the accused
and the deceased was the primary reason. It was noted that the accused was
pursuing studies till 13th May, 1991, and thereafter he returned home. Finding
the prosecution version to be suspect, the trial court directed acquittal. As
noted above State preferred an appeal. It was the primary stand that some thing
must have happened otherwise the victim would not have committed suicide and
the fact that the accused and the deceased could not have any sexual
relationship was an additional ground for suicide. The High Court found that
the evidence of Sunil Kumar (PW7) the brother of the deceased conclusively
established the accusations and accordingly set aside the order of acquittal
and recorded conviction.
3.
In
support of the appeal, learned counsel for the appellant submitted that the
High Court has not even discussed the conclusions of the trial court in the
proper perspective and even no reason was indicated as to why the High Court
differed with the view of the trial court. The allegation of dowry demand was
not stated during investigation and lot of improvements were made in court for
the first time. It is in essence submitted that considering the limited scope
for interference with the judgment of acquittal, the High Court should not have
interfered with the judgment of the trial court.
4.
Learned
counsel for the respondent-State on the other hand supported the judgment of
the High Court submitting that the High Court has rightly analysed the evidence
of PWs 5, 6 & 7 which was casually done by the trial court.
5.
The
parameters for dealing with an appeal against judgment of acquittal have been
laid down by this Court in several cases.
6.
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:
5 "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.
(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).
7.
Whereas
Sections 379-380 cover special cases of appeals, other sections lay down
procedure to be followed by appellate courts.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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."
14.
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."
15.
The
Committee, however, cautioned appellate courts and stated: (IA p.404) 10
"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."
(emphasis supplied)
16.
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.
17.
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.
18.
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)
19.
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.
20.
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".
21.
Upholding
the 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."
(emphasis supplied)
22.
In
Atley v. State of U.P. (AIR 1955 SC 807) this Court said:
13 "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."
(emphasis supplied)
23.
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:
(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."
(emphasis supplied)
24.
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 15 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
justified."
25.
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 16 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)
26.
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."
27.
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
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)
28.
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 19 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 reasonable even as any doubt, the benefit of
which an accused person may claim, must be reasonable."
(emphasis supplied)
29.
In
Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said:
20 "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."
30.
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 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."
31.
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 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".
32.
In
Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470,
this Court said:
22 "12.
Doubtless the High Court in appeal either against an order of acquittal or
conviction as a court of first appeal has full power to review the evidence to
reach its own independent conclusion. However, it will not interfere with an
order of acquittal lightly or merely because one other view is possible,
because with the passing of an order of acquittal presumption of innocence in
favour of the accused gets reinforced and strengthened. The High Court would
not be justified to interfere with order of acquittal merely because it feels
that sitting as a trial court it would have proceeded to record a conviction; a
duty is cast on the High Court while reversing an order of acquittal to examine
and discuss the reasons given by the trial court to acquit the accused and then
to dispel those reasons. If the High Court fails to make such an exercise the
judgment will suffer from serious infirmity."
33.
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 arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible 23 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".
34.
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)
35.
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 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.
36.
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 26
to be multiplied together. The one piece of evidence may confirm the
other."
37.
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.
38.
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).
39.
The
above position was highlighted in Krishnan and Anr. v. State represented by
Inspector of Police (2003 (7) SCC 56).
40.
PW5
had gone to the Police Station at Ateli at about 9.50 P.M. on 25.5.1991 to
lodge the report regarding the death of the deceased. The father of the
appellant had already sent one Dharam Pal for giving intimation of the death to
her parents. PW5 admitted that at the time of marriage Nepal Singh was studying
in MA Class in Delhi and after doing M.A. he had gone to Ahmedabad to undergo
some training. He accepted that the deceased had told him that the accused had
returned from Ahmedabad on 13.5.1991 after completing his course. It has also
been admitted by PW5 that he did not send any amount to Nepal Singh while he
was prosecuting studies at Ahmedabad. In the FIR PW had stated that he had told
that he would arrange money. After the marriage on 23.5.1991 victim went back
to village Kanti with her brother Sunil Kumar (PW7) and while going back she
told her father that if money was not arranged the accused and his family
members will not allow her to breathe.
41.
During
cross-examination he accepted that all this was not stated during investigation.
He also accepted that it was not mentioned in the FIR that gifts and other
articles were given as dowry. He accepted that his father in law Udai Singh had
settled the marriage between the accused and the deceased. Interestingly Udai
Singh (DW1) has stated that there was no demand from the side of the accused at
the time of marriage. The deceased and her parents had never complained to him
that the accused or any member of his family was raising any demand of any kind
when confronted with the statement made during investigation, PW5 accepted that
he had not stated many vital things during investigation which for the first
time he was speaking in Court. Similar is the position with PW7 the brother of
the deceased. He also accepted on being confronted with the statement made
during investigation that he had not stated particularly certain relevant
aspects. Similar is the position with the evidence of mother of deceased (PW6).
42.
As
was rightly noted by the trial court there was no evidence towards the claim
regarding any demand of dowry. That being so the High Court ought not to have
interfered with the well reasoned judgment of the trial court directing
acquittal. The reasoning of the High Court that something must have happened
and otherwise deceased would not have committed suicide is clearly
indefensible. That certainly could not have been a reason to set aside the
trial Court's judgment of acquittal.
43.
The
appeal is allowed. The bail bonds executed with effect to the order of bail
dated 18th May, 2002 and subsequent date shall stand discharged.
..............................................J.
(Dr. ARIJIT PASAYAT)
.............................................J.
(ASOK KUMAR GANGULY)
New
Delhi;
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