State of Rajasthan Vs.
Yusuf  INSC 835 (27 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 698 OF 2003 State
of Rajasthan ..Appellant Versus Yusuf ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Rajasthan High
Court, Jodhpur, directing acquittal of the respondents, who were found guilty
of offence punishable under Section 302 of the Indian Penal Code, 1860 (in
short the `IPC') by the Learned Additional Sessions Judge, Sojat, Shivir.
facts in a nutshell are as follows;
Smt. Sugra was wife
of accused Yusuf, who was married with her 20 years ago. Smt. Sugra was blessed
with two daughters; one was 12 years old and other was 5 years old. At about 1
O' clock on 25.2.1986 Smt. Sugra was thinking to prepare lunch in the kitchen.
Just then her husband accused Yusuf entered in the house and asked her to get
out of house. Smt. Sugra told him that she will leave only after a lapse of
three months. On this Smt. Sugra's husband said that he would bring another
wife, and Yusuf poured a bottle of Kerosene Oil on her and lit the fire. She
rushed out of the house, then the daughter in law of Mahmood Khan and Farid
Khan came out and threw a bucket of water on her. The Accused ran away through
the crops of mustard. Head Constable Vijay Kumar and Constable Prabhu Singh of
Jaitaran Police Station chowki were patrolling. The children heard the sound of
running and crying that a woman is burnt whereupon they reached the spot. A
woman was sitting outside the house of Sugra who was almost in naked condition.
Sugra was covered with a blanket, which was lying on the cot, and with the help
of a motorcyclist she was taken to hospital with constable Prabhu Singh in the
hospital, Sugra's statements were recorded by the S.H.O. of Jaltaran. On the
basis of above statement, case was lodged under Sec. 307 I.P.C. Site of
occurrence was inspected on the day of occurrence itself and Memo Ex.P-1 was
made During the inspection, on the spot (i.e. the kitchen) a kerosene bottle
was found and sealed and pieces of burnt clothes were found outside the
kitchen. A match-box was found in the kitchen. Collecting the pieces of burnt
clothes from the spot, Memo. Ex.P-2 was prepared and memo Ex.P-3 of recovered
burnt clothes - from the body of Smt. Sugra was prepared.
investigation, certificate ExP-1 regarding the condition of Sugra for giving
statement was prepared. Smt. Sugra's statement just before her dying
declaration was recorded on the day of incident at 3:20 P.M. by S.H.O. Jaltaran
which is exhibited as Ex.P.13. On 25/02/1986 statements of Ishq Ali,
Mojhnuddin, Narpat Singh, Kaal, Jannat.
Tultana, and Anwar were recorded. On 27.2.1986 Smt. Sugra's dying declaration
was recorded by the Additional Chief Judicial Magistrate Jaltaran. Injury
report of Smt. Surga was received vide Ex.P-4.
On completion of
investigation chargesheet was filed. Charges under Sec. 302 IPC against accused
Yusuf and Charges under Section 120-B read with article 302 IPC against other
six accused personss was read over to them. Accused persons denied the charges
and claimed trial. On behalf of the prosecution side 29 witnesses were produced
in the said case.
Statements of accused
persons were recorded under Sec. 313 of the Code of Criminal
Procedure, 1973 (in short `Cr.P.C'). In their statements, accused said that
statements of witnesses are wrong and that Sugra's father has burnt her and
lodged this false case in the court. Accused persons, in support of their
defence, examined DW-1 Rajkumar. According to the evidence of D.W.1 Rajkumar,
on listening to the shrieks and noise, reached to the spot first and throw
water on Sugra and put off the fire and wrapped her in a blanket. Sugra told
him that his father wanted to get her killed and Sugra had burnt herself and
her father was standing outside the door.
P.W.21 Dr. Kailash
Chander Mathur on 20/05/86 was on the post of Medical Jurist in Amritkaur
Hospital at Beawer. In his statement this witness has admitted that on that
day, on the request of Police Station Beawer he performed the postmortem of
Smt. Sugra W/o Mohd. Yusuf at 10:30 AM. It has been stated that Postmortem was
done by the Board, whose members were he himself and Dr. Nirmala Agarwal and
Dr. Gopa1 Mathur. This witness has stated that the medical board was of the
view that the cause behind Sugra's death was toxemia due to extensive burn and
she had died within six hours of postmortem.
He stated that the
postmortem report is written by him and bears his signature from A to B.
The statement of this
witness makes it clear that injuries of burn caused her death.
According to Trial
Court to be determined as to whether Sugra as per the accused persons, burnt
herself or she was burnt by her father or Smt. Sugra was burnt by her husband
after conspiring with other accused.
The trial court
relied on the purported dying declaration and found the appellant guilty.
The High Court found
that there were several variations in the dying declaration and apart from that
the High Court found that the dying declaration was not reliable and was not
free from infirmity. The High court found that the deceased had not made
circumstances were highlighted to find the dying declaration unacceptable.
1. A false statement
2. The statement
about the marital status.
3. False implication
of a large number of family members of the accused.
The High Court found
that the four statements given by her and described as dying declaration and
the statement under Section 161 of the CrPC indicated that she was consistently
improving her version to implicate the accused somehow or other.
It was also found
that her statement about the whereabouts of the children were also proved to be
false. Accordingly High Court directed acquittal.
3. Learned counsel
for the appellant submitted that even if there were exaggerations that should
not have weighed with the High Court to direct acquittal.
4. Learned counsel
for the respondent supported the judgment of the High Court.
5. This is a case where
the basis of conviction of the accused is the dying declaration.
The situation in
which a person is on the deathbed is so solemn and serene when he is dying that
the grave position in which he is placed, is the reason in law to accept the
veracity of his statement. It is for this reason that the requirements of oath
and cross-examination are dispensed with. Besides, should the dying declaration
be excluded, it will result in the miscarriage of justice because the victim
being generally the only eyewitness in a serious crime, the exclusion of the
statement would leave the court without a scrap of evidence.
6. Though a dying
declaration is entitled to great weight, it is worthwhile to note that the
accused has no power of cross-examination. Such a power is essential for
eliciting the truth as an obligation of oath could be. This is the reason the
court also insists that the dying declaration should be of such a nature as to
inspire full confidence of the court in its correctness. The court has to be on
guard that the statement of the deceased was not as a result of either
tutoring, or prompting or a product of imagination. The court must be further
satisfied that the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailant. Once the court is satisfied
that the declaration was true and voluntary, undoubtedly, it can base its
conviction on the same without any further corroboration. It cannot be laid
down as an absolute rule of law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence. This Court has laid down in several judgments the
principles governing dying declaration, which could be summed up as under as indicated
in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot
be acted upon without corroboration. [See: Munnu Raja v. State of M.P.(1976 (3)
SCC 104)] (ii) If the court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. (See: State of
U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and Ramawati Devi v. State of Bihar
1983(1) SCC 211)) (iii) The court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased had an opportunity to observe and
identify the assailants and was in a fit state to make the declaration. [See:
K. Ramachandra Reddy v. Public Prosecutor(1976(3) SCC 618)]) (iv) Where a dying
declaration is suspicious, it should not be acted upon without corroborative
evidence. [See: Rasheed Beg v. State of M.P.(1974(4) SCC 264)] (v) Where the
deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected. [See: Kake Singh v. State of
M.P.(1981 Supp. SCC 25)] (vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction.
[See: Ram Manorath v.
State of U.P.(1981(2)SCC 654] (vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to be rejected. (See State
of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp. SCC455)]
merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth. [See:
Surajdeo Ojha v. State of Bihar (1980 Supp.SCC 769)] (ix) Normally, the court
in order to satisfy whether the deceased was in a fit mental condition to make
the dying declaration looks up to the medical opinion. But where the eyewitness
said that the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of
M.P.(1988 Supp. SCC 152)] (x) Where the prosecution version differs from the
version as given in the dying declaration, the said declaration cannot be acted
upon. [See: State of U.P. v. Madan Mohan (1989 (3) SCC 390)] (xi) Where there
are more than one statements in the nature of dying declaration, the one first
in point of time must be preferred. Of course, if the plurality of the dying
declaration could be held to be trustworthy and reliable, it has to be
accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC
7. In the light of
the above principles, the acceptability of the alleged dying declaration in the
instant case has to be considered. The dying declaration is only a piece of
untested evidence and must, like any other evidence, satisfy the court that
what is stated therein is the unalloyed truth and that it is absolutely safe to
act upon it. If after careful scrutiny, the court is satisfied that it is true
and free from any effort to induce the deceased to make a false statement and
if it is coherent and consistent, there shall be no legal impediment to make it
the basis of conviction, even if there is no corroboration. (See Gangotri Singh
v. State of U.P.(1993 Supp(1)SCC 327).
8. When the evidence
on record has been examined in great detail by the trial Court and the High
Court to place reliance on the dying declaration, the conclusions cannot be in any
9. In the instant
case the High Court has found the dying declaration to be not truthful and that
there was an inherent attempt to falsely implicate the accused which was borne
out by various statements in the so called dying declaration which were proved
beyond doubt to be false.
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
15. 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 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
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."
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
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
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."
22. 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.
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."
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: (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
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
obviously did not and could not add a condition to Section 417 of the Criminal
Procedure Code. The words were intended to convey the idea that an appellate
court not only shall bear in mind the principles laid down by the Privy Council
but also must give its clear reasons for coming to the conclusion that the
order of acquittal was wrong."
The Court concluded
foregoing discussion yields the following results: (1) an appellate court has
full power to review the evidence upon which the order of acquittal is founded;
(2) the principles laid down in Sheo Swarup case afford a correct guide for the
appellate court's approach to a case in disposing of such an appeal; and (3)
the different phraseology used in the judgments of this Court, such as, (i)
`substantial and compelling reasons', (ii) `good and 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
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 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."
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
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."
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:
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 reasonable even as any doubt, the
benefit of which an accused person may claim, must be reasonable."
29. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this Court
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:
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
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 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:
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."
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.
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. In our considered
view it does not appear to be a case where any interference is called for.
37. Appeal deserves
dismissal, which we direct.
(Dr. ARIJIT PASAYAT)
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