Bhaskar Ramappa Madar
& Ors. Vs. State of Karnataka  INSC 656 (31 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 415 OF 2002
Bhaskar Ramappa Madar and Ors. ...Appellants State of Karnataka ...Respondent
Dr. ARIJIT PASAYAT,
1. Challenge in this
appeal is to the judgment of a Division Bench of the Karnataka High Court
allowing the appeal filed by the respondent-State of Karnataka. Said Criminal
appeal was filed under Section 378(1) and (3) of the Code of Criminal
Procedure, 1973 (in short the `Code'). The learned 3rd Additional Sessions
Judge, Dharwad, directed acquittal of the present appellants who faced trial
for alleged commission of offences punishable under Sections 304-B, 306, 498-A
read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC').
2. The prosecution version
in a nutshell is as follows:
The accused No.1 is
the husband of Ratnavva (hereinafter referred to as the `deceased') who was
given in marriage to the accused No.1 about 1= years prior to her death and
during their marriage, the accused No.1 was given 11 tolas of gold and a cash
of Rs.10,000/- alongwith other utensils. In spite of all this, the accused were
ill-treating and harassing the deceased Ratnavva coercing her to bring more
dowry and accordingly a cheque of Rs.10,000/- was given to the accused No.1 by
the mother of the deceased.
But in spite of that
the accused did not stop the ill-treatment, and harassment to the deceased
Ratnavva. On account of constant harassment and ill treatment to the deceased,
they made the life of the deceased a miserable one which abetted the deceased
to commit suicide. The accused No.1 is the husband of the deceased, the accused
Nos.2 and 3 are the parents in law, the accused Nos.4 and 5 are the sisters in
law and the accused N0.6 is the brother in law of the deceased.
On the basis of
information lodged, investigation was undertaken and on completion thereof
chargesheet was filed. As accused persons pleaded innocence, trial was held.
In order to
substantiate its case, the prosecution has examined at the trial PWs.1 to 18
and got marked in evidence Ex.P1 to P15 and Mos.1 to 12.
The trial Court held
that the Investigating Officer should not have proceeded with the investigation
as he was the complainant and on that ground held the prosecution version to be
tainted. It also found that the evidence of the witnesses did not inspire
challenged before the High Court, which on the other hand held that the
conclusions of the trial Court are erroneous.
3. Learned counsel
for the appellants submitted that the High Court nowhere recorded a finding
that the conclusions of the trial Court were either perverse or not supported
4. Learned counsel
for the respondent-State on the other hand supported the judgment of the High
5. So far as the
desirability of the complainant undertaking investigation is concerned there is
no legal bar. The decisions of this Court in Bhagwan Singh v. The State of
Rajasthan (1976 (1) SCC 15 at para 18) and Megha Singh v. State of Haryana
(1996 (11) SCC 709 at para 4) have to be confined to the facts of the said
cases. Merely because the complainant conducted the investigation, that would
not be sufficient to cast doubt on the prosecution version to hold that the
same makes the prosecution version vulnerable. The matter has to be decided on
case to case basis without any universal generalization.
6. On the facts of
the present case A-1 went to lodge the report. The S.I. (PW-17) registered the
case and on completion of investigation charge sheet was filed by D.S.P.
7. So far as appeals
against acquittals are concerned, Chapter XXIX (Sections 372-394) of 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.
(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 5 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).
8. Whereas Sections
379-380 cover special cases of appeals, other sections lay down procedure to be
followed by appellate courts.
9. 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.
10. Bare reading of
Section 378 of the present Code (appeal in case of acquittal) quoted above,
makes it clear that no restrictions have been imposed by the legislature on the
powers of the appellate court in dealing with appeals against acquittal. When
such an appeal is filed, the High Court has full power to re-appreciate, 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.
11. 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.
12. 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.
13. The first
important decision was rendered by the Judicial Committee of the Privy Council
in Sheo Swarup v. R. Emperor (1934) 61 IA 398). In Sheo Swarup the accused were
acquitted by the trial court and the local Government directed the Public
Prosecutor to present an appeal to the High Court from an order of acquittal
under Section 417 of the old Code (similar to Section 378 of the present Code).
At the time of hearing of appeal before the High Court, it was contended on
behalf of the accused that in an appeal from an order of acquittal, it was not
open to the appellate court to interfere with the findings of fact recorded by
the trial Judge unless such findings could not have been reached by him had
there not been some perversity or incompetence on his part. The High Court, however,
declined to accept the said view. It held that no condition was imposed on the
High Court in such appeal. 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
14. 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
15. 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
16. 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."
17. 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.
18. 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
19. 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."
20. 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
21. 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
22. 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."
23. 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.
13 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."
24. 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
25. 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:
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 15 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."
26. 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 16 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."
27. 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
28. 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.
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."
29. 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 present Code.
After considering the relevant decisions on the point it was stated as follows:
principles are now well settled. At one time it was thought that an order of
acquittal could be set aside for `substantial and compelling reasons' only and
courts used to launch on a search to discover those `substantial and compelling
reasons'. However, the `formulae' of `substantial and compelling reasons',
`good and sufficiently cogent reasons' and `strong reasons' and the search for
them were abandoned as a result of the pronouncement of this Court in Sanwat
Singh v. State of Rajasthan (1961) 3 SCR 120. In Sanwat Singh case this Court
harked back to the principles enunciated by the Privy Council in Sheo Swarup v.
R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of
Rajasthan this Court has consistently recognised the right of the appellate
court to review the entire evidence and to come to its own conclusion bearing
in mind the considerations mentioned by the Privy Council in Sheo Swarup case.
Occasionally phrases like `manifestly illegal', `grossly unjust', have been
used to describe the orders of acquittal which warrant interference. But, such
expressions have been used more as flourishes of language, to emphasise the
reluctance of the appellate court to interfere with an order of acquittal than
to curtail the power of the appellate court to review the entire evidence and
to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of
A.P., (AIR 1971 SC 460) Bhim Singh Rup 19 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."
30. In Ramesh Babulal
Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said:
in judgment over an acquittal the appellate court is first required to seek an
answer to the question whether the findings of the trial court are palpably
wrong, manifestly erroneous or demonstrably unsustainable. If the appellate
court answers the above question in the negative the order of acquittal is not
to be 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 20
any of the above infirmities it can then-and then only- reappraise the evidence
to arrive at its own conclusions."
31. 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
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
32. 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 21 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
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".
33. 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 22 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."
34. 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".
35. Again in Kallu v.
State of M.P. (2006) 10 SCC 313, this Court stated:
23 "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."
36. 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.
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.
25 (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
37. 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":
Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]:
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
38. 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.
39. 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).
40. The above
position was highlighted in Krishnan and Anr. v. State represented by Inspector
of Police (2003 (7) SCC 56) and Valson and Anr. V. State of Kerala (Criminal
Appeal No.572 of 2001 disposed of on August 1, 2008)
41. In the instant
case the trial Court categorically found that the so called ill treatment was
for not bringing money and also for not willing to part with her child in
favour of accused No.4. The High Court in the impugned judgment held that the
appellants were guilty of offence punishable under Sections 306 and 498-A IPC.
42. The evidence of
PW-2, the wife of PW-1 and the mother of the deceased is of great significance.
She stated that accused persons were abusing, beating her daughter and pulling
her hairs and they were not giving proper food to her. She advised her daughter
to adjust as this witness has got five more daughters. She further stated that
they had given Rs.10,000/- in cash out of the income of rent received by her
and she gave it to accused No.l through cheque and still accused persons did
not stop ill-treatment and again demanded money. They demanded Rs.15,000/- and
this witness was unable to pay the same. So far the cheque is concerned, the
cheque is marked at Ex. P-4, which is a Xerox copy and the Manager of the Bank
is examined in support of the case as PW-12. The witness PW-12 deposed that the
cheque has been encashed on 24.4.1989 at Syndicate Bank, Mundgor.
The accused persons
also admitted of having taken the cheque for Rs.10,000/- but their defence is
that accused No.1 was plying a truck and the truck met with accident which
required heavy repairs and so PW-2 has given a cheque for repairs of said truck
and not as dowry. To show that A-1 was owning a truck for which he has produced
the Xerox of R.C. Book which shows the name of A-1 as per the owner of the
truck bearing No.MYE 5577. To show that the said truck met with an accident
accused produced the copy of extract of Register No.III Criminal from the Court
of J.M.F.C. Khanapur which shows that the truck met with accident on 26.12.1988
and as per the date of registration and F. I. R. and Register, the case was
registered under Sections 279, 337 and 338 IPC, on the basis of which, the
accused pleaded guilty for the said offences and the accused was convicted and
sentenced to pay a fine of Rs.500/- and Rs.800/- respectively.
From the above said
document prima facie it is clear that A-1 was having the truck bearing No.MYE
5577 which met with an accident on 26.12.1988 within the jurisdiction of
Khanapur Court and defence of the accused persons appears to be more probable.
At least it creates doubt regarding the case of prosecution that the cheque for
Rs.10 000/- - was given towards the demand of dowry. PW-1 admitted in the
cross-examination that accused No.2 is the native of Goshanatti in Khanapur
Tal, and he has not got house and land at Goshanatti. But she denied that
accused no.2 is cultivating lands personally. But she admitted that she does
not know who is cultivating the land of accused No 1. She also denied that
accused Nos.3 to 6 was residing at Goshanatti. She had admitted that accused
No.l was running the truck.
She admitted that her
daughter had come for delivery to her house and she stayed for seven months
with them and after delivery after about three months, she went to her
husband's house. She denied that they had paid the cheque for repairs of the
said truck which met with an accident.
43. PW-1's evidence
is also significant. He stated his daughter and son- in-law-accused No. l came
to his house and his daughter told that there is no ill-treatment by her
husband but stated that there is ill-treatment by accused Nos. 4 to 6 and so,
she does not want to go back and stayed there. From this evidence of PW- 1, it
is clear that there was no ill-treatment by accused Nos.
1 to 3 to the
deceased Ratnavva and ill-treatment if any, was only by accused Nos. 4 to 6. In
spite of the same, PW-1 stated that on the next day, his daughter and accused
No. l went to their house. Another version given by this witness is that
accused No.4-Geeta had no issues and she was insisting the deceased Ratnavva to
give her son in adoption to her, to which she refused and so accused No.4
started ill-treating her. This version is unbelievable, simply because, accused
No.4 has no issues, it does not mean that she same will insist her brother or her
brother's wife to give their only son in adoption to her. Even assuming that
she has demanded so, it does not mean that is demand of dowry so as to attract
the provisions of Section 498 (A) IPC.
44. PWs 1, 2 and 5
i.e. father, mother and brother of the deceased do not speak of any dowry
demand. The High Court's reasoning that there was nothing to show that A-1
owned a truck is contrary to the evidence on record. PW-1 has accepted the
position as noticed by the trial Court. There is no analysis of the conclusions
of the trial Court by the High Court.
45. Above being the
position, the interference by the High Court with the order of acquittal is not
correct. The impugned order of the High Court is set aside. The bail bonds
executed pursuant to this Court's Court dated 22.3.2002 shall stand discharged.
The appeal is allowed.
(Dr. ARIJIT PASAYAT)
Pages: 1 2 3