[2008] 13 S.C.R. 269

STATE OF U.P.

AWDHESH (Criminal Appeal No. 803 of 2001)

SEPTEMBER 9, 2008

[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB

ALAM, JJ]

Code of Criminal Procedure, 1973:

s. 378 - Appeal against acquittal - Conviction by trial C court u/s 396 /PC - Acquittal by High Court - HELD: High Court has rightly noticed the discrepancies and inconsistencies in prosecution evidence - A person has a profound right not to be convicted of an offence which is not established by evidential standard of proof beyond reasonable D doubt - Keeping in view the principles regarding power of appellate court while dealing with an appeal against order of acquittal, and the view of the High Court being a possible one, the judgment of High Court requires no interference - Penal Code, 1860 - s. 396 - Constitution of India, 1950 - Article E 136.

A case u/ss. 396 and 314 IPC was registered against the respondent and two others in connection with a dacoity committed at about mid day for about 2-3 hours by 16-17 dacoits in the house of PW-2 and PW-9, both, F brothers, wherein their another b(other was killed and some of the family members were injured. One of the accused absconded and the other died. The trial court convicted the respondent u/s 396 IPC and sentenced him to imprisonment for life. But, the High Court acquitted the G respondent. Aggrieved, the State filed the instant appeal.

Dismissing the appeal, the Court

HELD:1.1 The parameters for dealing with an appeal 269 H

A against acquittal have been laid down by this Court in

several cases. In the case of Chandrappa* , the Court has culled out general principles regarding powers of appellate court while dealing with an appeal against order of acquittal. [para 7 and 37] [276 C-D 292-C]

B *Chandrappa and Ors. v. State of Kamataka 2007 (4) SCC 415; Prandas v. State AIR 1954 SC 36; Atley v. State of UP AIR 1955 SC 807; Sanwat Singh v. State of Rajasthan

(1961) 3 SCR 120; Bhagwan Singh v. State of MP (2002) 4 SCC 85; and Harijana Thirupa/a v. Public Prosecutor, High C Court of A.P (2002) 6 sec 470 - relied on.

Ramesh Babula! Doshi v. State of Gujarat (1996) 9 SCC 225; and Ramanand Yadav v. Prabhu Nath Jha (2003) 12 sec 606 - referred to.

D Nur Mohd. v. Emperor AIR 1945 PC 151; and Shea

Swarup v. R. Emperor (1934) 61 IA 398 - referred to.

1.2 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, F reaffirmed and strengthened by the trial court. [para 12]

[278 E-G]

Surajpal Singh v. State 1952 seR 193; Ajmer Singh v.

State of Punjab 1953 seR 418; M.G. Agarwal v. State of G Maharashtra (1963) 2 SCR 405; Shivaji Sahabrao Bobade v.

State of Maharashtra 1973 (2) sec 793; and K. Gopal Reddy

v. State of A.P (1979) 1 sec 355 - relied on.

Aher Raja Khima v. State of Saurashtra (1955) 2 seR 1285; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC H 57; Ka/Ju v. State of M.P (2006) 10 SCC 313 - referred to.

-4 STATE OF U.P. v. AWDHESH 271

1.3 In the instant case, the High Court primarily A acquitted the accused on the premises that admittedly

-1 accused 'BS' and 'JS' on the one hand, and PW-2 and the deceased, on the other, were in inimical terms; the 1 respondent happened to be the brother-in-law of accused 'BS' and the trial court lost sight of the enmity aspect; B that on the information of the village chowkidar (PW-3), the case was registered against unknown persons and no one was named as accused; that it was only when PW-2 submitted a written report to the Investigating Officer that the name of the respondent along with two others c was indicated; that PWs 11 and 12 admitted that they did

~ not know the respondent, yet they deposed as if they were acquainted with him; that while some of the alleged dacoits were stated to have covered their faces to conceal

~ their identity, the three named accused, who were known, did not try to cover their faces; that the witnesses on D

hearing about the decoity had rushed to the Police Station and had no occasion to know the names of the accused persons. [para 4-7] [275 A-H; 276 A]

1.4 A person has, no doubt, a profound right not to E be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt.

4 Doubts would be called reasonable if they are free from a zest for abstract speculation. A reasonable doubt is not --( an imaginary, trivial or a merely possible doubt, but a fair F doubt based upon reason and common sense. It must grow out of the evidence in the case. [para 38-39] [293-C]

''The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342) - referred to.

1.5 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 H ...

A 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 B 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. [para 40] [294 C-E]

State of UP v. Krishna Gopal 1988 (4) SCC 302; Krishnan c and Anr. v. State represented by Inspector of Police 2003 (7) sec 56 - relied on.

2. In the instant case, though the judgment is not happily worded and some of the reasonings are not legally

D supportable but the ultimate conclusion is a possible view and, therefore, the same is not interfered with. [para 42] ~

[294-F]

Case Law Reference

(1934) 61 IA 398 referred to para 14 E

AIR 1945 PC 151 referred to para 18

AIR 1954 SC 36 relied on para 19

1952 SCR 193 relied on para 21

1953 SCR 418 relied on para 22

AIR 1955 SC 807 relied on para 22

(1961) 3 SCR 120 relied on para 26

(1963) 2 SCR 405 relied on para 27

:I G 1973 (2) sec 793 relied on para 28

l.~

(1979) 1 sec 355 relied on para 30

(1996) 9 sec 225 referred to para 31

(2002) 3 sec 57 referred to para 32 H

(2002) 4 sec 85 relied on para 33

STATE OF U.P. v AWDHESH

(2002) 6 sec 470 relied on

(2003) 12 sec 606 -referred to

(2006) 10 sec 313 referred to

2007 (4) sec 415 relied on

para 34

Para 35

para 36

para 37

1988 (4) sec 302 relied on para 40

2003 (7) sec 56 relied on para 41

CRIMINALAPPELLATE JURISDICTION: CriminalAppe!'ll No. 803 of 2001

c From the final Judgment and Order dated 14.11.2000 of the High Court of Judicature at Allahabad in Criminal Appeal No. 1564 of 1980

S.N. Pandey, Anil Kaushik and Chandra Prakash Pandey for the Appellant.

Vishwajit Singh for the Respondents.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court E setting aside the conviction of the respondent for offence punishable under Section 396 of the Indian Penal Code, 1860 (in short the 'IPC') as was recorded by learned Vth Additional Sessions Judge, Fatehpur. The respondent was sentenced to imprisonment for life by the said judgment; but he was acquitted F of the charge relatable to offence punishable under Section

314 IPC.

2. Background facts in a nutshell are as under:

A dacoity was committed on 9.5.1973 at about mid day G for about 2-3 hours in the house of three brothers namely

Ramdas (PW-9), Har Prasad (PW-2) and Hiralal (hereinafter referred to as the 'deceased') in village Palia Buzurg within the area of police station Hathgaon, district Fatehpur. It was alleged that about 16-17 dacoits successfully decamped with cash, H

A jewellery, ornaments, firearms etc. During the course of commission of dacoity, Hiralal, Mahesh Chandra and Smt.

Mahabiria sustained injuries of whom Hiralal died.

While dacoity was in operation, the matter was reported

orally at police station, Hathgaon by village chowkidar Ram Ratan (P.W. 3) on the same day at 1.30 P.M. wherein none was

named. Head Moharrir Fateh Bahadur Singh (P.W. 1) recorded the report in chick register and registered case under Section 395/397 IPC. Station Officer Yadram Verma (P.W. 29) took up investigation and he immediately proceeded to the scene of c occurrence. He met injured Hiralal, Mahesh Chandra and Smt.

Mahabiria on the way. He got the said injured sent for their medical examination with "chithi majroobi''. When the injured persons were being taken to hospital, Hiralal succumbed to his injuries. The constable who was escorting the injured then gave D information at police station about the death of Hiralal,

whereupon case was converted to one under Section 396 IPC.

When the investigating officer reached the place of occurrence, Har Parsed (P.W. 2) handed over to him a list of

stolen articles and also a report giving out details of commission of dacoity in his house wherein he named three persons, namely respondentAwdhesh, Ram Rattan alias Jhallar and Babu Singh.

The investigating officer recorded the statements of witnesses on 10.5.1973, arrested named as well as some unknown persons during the course of investigation and some stolen F articles were alleged to have been recovered from respondent ~

Awdhesh and other accused. On completion of investigation charge sheet was submitted.

3. Since the accused persons abjured guilt they were put

G on trial. It is to be noted that originally three persons were named as accused and reference was made to 9 unknown persons.

One of them died during trial, ar.d one died during pendency of the appeal before the High Court. Respondent was accused ..

No.4. In order to further its version prosecution examined 29

H witnesses. Placing reliance on testimony of Har Prasad (PW-2),

STATE OF U.P. v. AWDHESH 275 .....

[DR. ARIJIT PASAYAT, J.]

~ Ram Lakhan (PW-7), Smt. Sheo Sakhi (PW-11) and Smt. Ram A Rati (PW-12) the trial Court directed conviction as noted above.

4. Stand of the appellant before the High Court was that accused persons were admittedly on inimical terms with Har

...

Prasad (PW-2) and it was a specific case that accused Babu B Singh had absconded and did not face trial. He was on inimical terms with the deceased and PW-2. Respondent Awdhesh happened to be brother in law of Babu Singh. The trial Court held that the accusations have been established. In appeal ... before the High Court it was noted that the enmity aspect was lost sight of by the Trial Court. In any event, for a long time no c

~ witness supposedly spoke about accused Awdhesh. Though . -I the village Chowkidar, Ram Ratan (PW-3) reported the matter to the police station on the basis of which Crime case No.30 -I was registered, no one was named as accused and the case "1 .. was registered against unknown persons. Only when a written D report was submitted by Har Prasad (PW-2) to the investigating officer, name of respondent was indicated alongwith Babu Singh and Jhallar Singh. It was pointed out that though PW-2 was ... shouting that three named persons were committing dacoity, in

~ the report submitted by PW-3 the names were not given.

-.I E Reference was also made to the evidence of Ram Lakhan (PW-4) who admitted that he never mentioned the names of the three persons whose names appeared in the report given by

~ PW-2. With reference to the evidenc~ of Smt. Sheo Sakhi, the 1 ..

High Court noticed that she did not know Awdesh, yet stated as F if she was acquainted with him. Her statement in the cross examination was highlighted by the High Court. Similar was the position regarding Smt. Ram Rati (PW-12). The investigating officer stated that when he was going to the place of occurrence, he had met the deceased and two other persons who received G injuries in the occurrence. They were Mahesh Chandra and Smt. Mahabiria. He had a talk with them and he sent them for ,.. medical examination. But till that time also the names of Awdhesh, Babu Singh and Jhallar Singh were not disclosed.

Primarily, on these premises the High Court directed acquittal.

5. The High Court also referred to the fact that while some •

of the alleged dacoits covered their faces to conceal the identity; the three named accused persons who were known did not try to cover their faces.

6. Learned counsel for the appellant-State submitted that ,.. the reasoning indicated by the High Court does not justify the order of acquittal. Most of the reasonings are based on surmises and conjectures. Particular reference is made to the evidence of PW-3. The High Court found that in the report submitted by PW-2 there was no reference to the three named accused c persons.

7. It is pointed out that the witnesses on hearing about the dacoity had rushed to the police station and had no occasion to know the names of accused persons. The parameters for

D dealing with an appeal against judgment of acquittal have been ·

laid down by this Court in several cases.

8. It would be appropriate to consider and clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") E 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. "" F 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

G acquittal. The said section is material and may be quoted in extenso:

"378. Appeal in case of acquittal.-(1) Save as other11vise ... provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in H any case, direct the Public Prosecutor to present an appeal

STATE OF U.P. v. AWDHESH 277

[DR. ARIJIT PASAYAT, J.]

to the High Court from an original or appellate order of A 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 B j 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 c

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) D 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 E 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 F ..... 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) G

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 subse_ction (2).

9. Whereas Sections 379-380 cover special cases of appeals, other sections lay down procedure to be followed by appellate courts.

10. It may be stated that more or less similar provisions

B 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 c acquittal, we have confined ourselves to one aspect only i.e. an

appeal against an order of acquittal.

11. Bare reading of Section 378 of the Code (appeal in case of acquittal) quoted above, makes it clear that no

D 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

E its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.

12. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly,

F the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person

)I.

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, tl1e presumption of his innocence is (

G certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

13. Though the above principles are well established, a

,,..

different note was struck in several decisions by various High ...

Courts and even by this Court. It is, therefore. apprcpriate if we H consider some of the leading decisions on the point.

STATE OF U.P. v. AWDHESH 279

[DR. ARIJIT PASAYAT, J.]

14. The first important decision was rendered by the A 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 B (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 c been reached by hjm 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 D

order of conviction. A petition was presented to His Majesty in Council for leave to appealon 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 E 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 F ..... 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. Tile Code a_lso 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 G were cited revealing different views by the High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases.

15. Lord Russel summed up the legal position thus: H

"There is, in their opinion, no foundation for the viev1:, apparently supported by the judgments of some coU1is in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result."

16. His Lordship, then proceeded to observe: (IA p.404)

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the D conclusion that upon that evidence the order of acquittCJi should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code "

17. The Committee, however, cautioned appellate courts and stated: (IA p.404)

"But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; ( 3) th.e 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 Cou:t in its conduct of the appeal should and will act in accordance with rules and principles wefl known and i'ecognised in the administration of justice."

(emphasis supplied)

.,,.

STATE OF U.P. v. AWDHESH

[DR ARIJIT PASAYAT, J.] 281

18. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the A Committee reiterated the above view in Shea Swarup (Supra) and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal.

19. So far as this Court is concerned, probably the first decision on the point was Prandas v. State (Al R 1954 SC 36) 8

(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, C for convicting the accused, placed reliance on certain eyewitnesses.·

20. Upholding the decision of the High Court and following the proposition of law in Sheo Swarup (supra), a six-Judge 0 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 ajudgmentof E acquittal, unless the judgment is perverse or the subordinate court has in some way or other misdirected itself so as to produce a miscariage of justice."

(emphasis supplied)

21. In Surajpal Singh v. State (1952 SCR 193), a two- Judge Bench observed that it was well established that in an appeal under Section 417 of the (old) Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the G presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.

22. In Ajmer Singh v. State of Punjab (1953 SCR 418) the accused was acquitted by the trial court but was convicted by the High Court in an appeal against acquittal filed by the State.

The aggrieved accused approached this Court. It was contended by him that there were "no compelling reasons" for B setting aside the order of acquittal and due and proper weight Jr 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 c made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed".

23. Upholding the contention, this Court said: D "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

E the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons."

(emphasis supplied)

24. lnAtleyv. State of UP (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 jud:.; r11ent of acquittal under appeal was perverse it could not set

G 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 H rule that the presumption of innocence of the accused is

STATE OF U.P. v. AWDHESH 283 Mt

[DR. ARIJIT PASAYAT, J.]

not weakened but strengthened by the judgment of acquittal A 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 B 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 c 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) D

25. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court E against an order of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p. 220, para 1) "It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding _that the trial court was wrong." F (emphasis supplied)

26. Jn 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 G 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: H

A "Th is 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 B to the conclusion that the order of acquittal was wrong."

The Court concluded as follows:

"9. The foregoing discussion yields the following results: ( 1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the 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,

(1) 'substantial and compelling reasons', (i1) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

27.Again, in MG 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, G 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 cf seeing the H witnesses and hearing their evidence can be reversed

STATE OF U.P. v. AWDHESH 285 -"\

[DR. ARIJIT PASAYAT, J.]

only for very substantial and compelling reasons': vide A Surajpal Singh v. State (1952SCR193). 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 re;:isons to do so'. In some B 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 c 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 D 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 E 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 F (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) G

28. Yet in another leading decision in Shivaji Sahabrao

~ Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no jurisdictional limitation on the powers of appellate court. "In law there are no fetters on the plenary H

A 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 B homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration."

29. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court C 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

STATE OF U.P. v. AWDHESH 287

[DR. ARIJIT PASAYAT, J.]

'persons' and more severe punishment of those who are A 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

1 may arise from the acquittal of the guilty no less than from B 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 c free and chopping the logic of preponderant probability to punish marginal innocents.''

(emphasis supplied)

30. lnK. GopalReddyv. StateofA.P(1979) 1 SCC355, the D 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 E

'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 F 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 Shea Swarup v. R. Emperor and reaffirmed those principles. G 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 Shea Swarup case. Occasionally H

~"'

A phrases like 'manifestly illegal', 'grossly unjust', have beer. 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 B than to curtail the power of the appellate court to review r 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 c 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

D 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 E 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 F 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."

G (emphasis supplied)

31. In Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said:

"While sitting in judgment over an acquittal the appellate H court is first required to seek an answer to the question

STATE OF U.P. v. AWDHESH 289

[DR. ARIJIT PASAYAT, J.]

whether the findings of the trial court are palpably wrong, A 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 B any of the above infirmities it can then-and then only~ reappraise the evidence to arrive at its own conclusions."

32. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 sec 57, referring to earlier decisions, the Court stated: c "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 D 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 E 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."

_>( F

33. In Bhagwan Singh v. State of MP (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 hae disturbed the findings of fact of the trial -.; court even if that view was not correct, this Court observed: G "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 1 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 H

STATE OF U.P. v. AWDHESH 291 ; )

[DR. ARIJIT PASAYAT, J.]

the High Court whil~ reversing an order of acquittal to A examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity."

35. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 B

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 c 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 D 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 rnay arise from acquittal of the guilty is no less than from the E conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed ->/, any offence or not" .

. 36. Again in Kal/u 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 G 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 H

k '

~. and the view taken is reasonable and plausible. It will not reverse the decision of the trial. court merely because a different view is possible. The appellate court will also _ bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court."

(emphasis supplied)

37. From the above decisions, in Chandrappa and Ors.

11. 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,

[DJ 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",

Fl "very strong circumstances", "distorted conclusions", )l "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

G the reluctance of an appellate court to interfere with

1 •. acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

' An appellate court, however, must bear in mind that

\ (4)

t in case of acquittal, there is double presumption in H favour of the accused. Firstly, the presumption of

~ ..

STATE OF U.P. v. AWDHESH

[DR. ARIJIT PASAYAT, J.] 293:

innocence is available to him under the fundamental principle of criminal jurisprudence that every persom shall be presumed to be innocent unless he is proved~ guilty by a competent court of law. Secondly, thi accused having secured his acquittal, the;

presumption of his innocence is further reinforcedG ijj reaffirmed and strengthened by the trial court. ri

. 1i (5) If two reasonable conclusions are possible on the~ basis of the evidence on record, the appellate court' should not disturb the finding of acquittal recorded' by the trial court. ~

38. A person has, no doubt, a profound right not to be1

convicted of an offence which is not established by the evidentia\! standard of pr6of beyond reasonable doubt. Though thiS 1

standard is a higher standard, there is, however, no absolute' standard. What degree of probability amounts to"proof' is an1

exercise particular to each case. Referring to the 1

interdependence of evidence and the confirmation of one piecer of evidence by another, a learned author says [see "ThJ Mathematics of Proof II": Glanville Williams, Criminal La.;}

' Review, 1979, by Sweet and Maxwell, p.340 (342)]: , = 'I "The simple multiplication rule does not apply if the, • separate pieces of evidence are dependent. Two events1 are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent.

F-i In a criminal case, different pieces of evidence directed tq' 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 confessionsJ and guilty rather than innocent people who run away, the: two doubts are not to be multiplied together. The one piece of evidence may confirm the other." l fl

39. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons B arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

40. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees D 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 E 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 UP v. Krishna Gopal (1988 (4) sec 302).

41. The above position was highlighted in Krishnan and F Anr. v. State represented by Inspector of Police (2003 (7) SCC

56).

42. In the present case, though the judgment is not happily worded and some of the reasonings are not legally supportable G but the ultimate conclusion is a possible viev1. That being so, we decline to interfere in this appeal which is disrn:ssed. The bail bond executed in the present case by the respondent shall stand discharged. ,,

R.P.

Appeal dismissed.

k t