. '

[2008] 11 S.C.R. 607

SATYA NARAIN YADAV

GAJANAND AND ANR. (Criminal Appeal No. 305 of 2001)

AUGUST 1, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860; Ss.96-106; S.302 r/w s.149/Evidence

Act, 1872; s. 105: C

Assault and murder- Exercise of right of private defence

- Trial Court convicted accused for committing offence punishable under s. 302 /PC and sentenced to life imprisonment

- Reversed by High Court accepting the stand of accused that blows given by him were in exercise of right of private de- D fence - Correctness of - Held: Correct - No doubt, an accused has profound right not to be convicted for an offence which is not established by evidential standard of proof beyond reasonable doubt - Doubts are reasonable if they are free from a zest for abstract speculation - Law can not afford E any favourite other than truth - While protection given by criminal process to accused not to be eroded, at the same time, uninformed legitimation of trivialities would make mockery of criminal justice - On facts, the High Court has rightly held that the accused, in exercise of right of private defence, inflicted F injuries on the deceased - Right of private defence - Exercise of

Code of Criminal Procedure, 1973 - Section 378 - Appeal against acquittal - Ingredients - Discussed.

Evidence: G

-,.

Acquittal - Presumption in favour of accused - Dis-

..J cussed.

607 H

--f

...

A Power of appellate Court/High Court - Held: No restriction has been imposed by the legislature in dealing with ap- "':" peal against acquittal - High Court has full power to re-appre- ' ciate, review and re-consider the evidence at large and the material on which order of acquittal is founded to reach its B conclusion - Both questions of fact and of law are open to determination by the High Court.

According to the prosecution, on the fateful day,

~ when PW-13-the informant along with his brother, the deceased, was working in the field, accused-respondent p c No.1 and others attacked his brother on his head, as a .. "' result of which he got injured and later succumbed to the injuries. An FIR was lodged in the Police Station. After completion of the investigation, charge-sheet was filed by the Police against the accused for committing the of- ) 0 fence punishable u/s.302 IPC. Trial Court found the accused guilty of committing the murder of brother of the }.. ,.

informant and sentenced him to undergo rigorous imprisonment for life. The High Court accepting the stand of the i> accused that he gave blows on the deceased in exercise E of right of private defence acquitted him. Hence the present appeals.

Appellant-informant contended that the trial Court has erroneously held that the accused were exercising the right of private defence.

F Respondent No.1 submitted that when injury was caused by lathi not only on the accomplice of 'G' but also to 'G' - respondent, it cannot be said that they were not exercising the right of private defence.

G Dismissing the appeal, the Court

HELD: 1.1 Section 96 IPC does not define the expres- -( sion 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. • H Whether in a particular set of circumstances, a person legiti· ) t

SATYA NARAIN YADAV v. GAJANAND &ANR. 609

~ mately acted in the exercise of the right of private defence is A .. a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. (Para - 9) [917-G-H; 918-A-B] B

1.2 Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is ' not possible for the Court to presume the truth of the plea ,.

1 of self-defence. The Court shall presume the absence of c such circumstances. (Para - 9) [618-C-D]

" 1.3 Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused D was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side .. . of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities E in favour of that plea on the basis of the material on record. (Para - 9) [618-F-G]

Munshi Ram and Ors. v. Delhi Administration AIR (1968) SC 702; State of Gujarat v. Bai Fatima AIR (1975) SC 1478;

State of UP v. Mohd. Musheer Khan AIR (1977) SC 2226; F Mohinder Pal Jolly v. State of Punjab AIR (1979) SC 577 and Salim Zia v. State of U.P. AIR (1979) SC 391 - relied on.

1.4 A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it G is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an ac- 'r cused, the entire incident must be examined with care and ' _,

viewed in its proper setting. (Para - 11) [619-F] H

~0--

A 1.5 To claim a right of private defence extending to ~ vol.untary causing of death, the accused must show that I there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the ac- B cused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence. (Para

~ .

- 11) [919-A-B]

/ 1.6 The right of private defence commences, as soon " c as a reasonable apprehension of danger to the body ~

arises from an attempt, or threat, to commit the offence, .~

' although the offence may not have been committed but r not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the dan- D ger to the body continues. (Para - 12) [629-C-D]

Jai Dev. v. State of Punjab AIR (1963) SC 612 - relied on. ... ,,.,

1.7. In order to find whether right of private defence E is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused • by the accused and the circumstances whether the ac- [.._

; cused had time to have recourse to public authorities are ) all relevant factors to be considered. (Para - 13) [629-F]

F Biran Singh 11. State of Bihar AIR (1975) SC 87; Wassan Singh v. State of Punjab (1996) 1 SCC 458 and Sekar alias

)..

Raja Sekharan v. State represented by Inspector of Police, TN. (2002 (8) sec 354 - relied on. ·

G 1.8 Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is .the paramount consideration. But, if }- the fact situation shows that in the guise of self-preserva- \ H

. SATYA NARAIN YADAV v. GAJANAND &ANR 611

~ tion, what really has been done is to assault the original A aggressor, even after the cause of reasonable apprehen- ; sion has disappeared, the plea of right of private-defence ,.

can legitimately be negatived. The Court dealing with the plea has to weigh the material to. conclude .whether the plea is acceptable. It is essentially a finding of fact. (Para B

- 14) [621-C-E]

Buta Singh v. The State of Punjab AIR (1991) SC 1316 - relied on.

1.9 The right of self-defence is a very valuable right, c serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any micro- D scopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court E room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal cir- F cumstances. (Para - 15) [621-E-H; 622-A]

Vidhya Singh v. State of M.P AIR (1971) SC 1857 - relied on.

Russel on Crime, 11 1h Edition Volume I at p. 49 - re- G ferred to.

1.10 The right of private defence is essentially a de- ..,, tensive right circumscribed by the governing statute i.e. =I the IPC, available only when the circumstances clearly H

A justify it It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of nffence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right; B care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived. (Para - 17) [622-E-F]

C V Subramani and Anr vs. State of Tamil Nadu (2005) 10 sec 358 - relied on.

2.1 Bare reading of Section 378 of the Code makes it clear that no restrictions have been imposed by the legis- 0 lature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own con- • clusions on such evidence. Both questions of fact and of E law are open to determination by the High Court in an appeal against an order of acquittal. (Para - 22) [624-F-G]

2.2 In case of acquittal, there is a double presumption in favour of the accused. Firstly, the presu!Tiption of F 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 inno- G cence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. (Paras - 23 & 24) [624-H; 625-A-C]

H Shea Swarup v. R. Emperor (1934} 61 IA 398; Nur Mohd.

SATYA NARAli'J YADAV v. GAJANAND & ANR. 613

>--

v. Emperor AIR (1945) PC 151; Prandas v. State AIR (1954) A

..... - SC 36; Surajpal Singh v. State (1952) SCR 193; Ajmer Singh

=;>"'

v. State of Punjab (1953) SCR 418; Atley v. State of UP AIR

(1955) SC 807; Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285; Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120; M. G. Agarwal v. State of Maharashtra (1963) 2 SCR B 405; Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 sec 793; K. Gopal Reddy v. State of A.P (1979) 1 sec 355; Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC

57; Bhagwan Singh v. State of MP (2002) 4 SCC 85; Harijana c Thirupala v. Public Prosecutor, High Court of A. P (2002) 6 SCC 470; Ramanand Yadav v. Prabhu Nath Jha (2003) 12 sec 606 and Kallu v. State of MP (2006) 10 sec 313 - relied on.

3.1 A person has, no doubt, a profound right not to D 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.

E (Para - 49) [640-A-B]

Criminal Law Review, 1979, by Sweet and Maxwell, p.340 - referred to.

3.2 Doubts would be called reasonable if they are free F 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, G 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. (Para - 50) [640-C-G]

A , 3.3 The concepts of probability, and the degrees of -1 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 B degrees of probability and the quantum of proof. Forens_ic probabiliy m, ust, in the last analysis, rest on a robust common sense and, ultimately, .on the trained _intuiti9ns of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at c the same ti.me, uninformed legitimization of trivialities

woµ19 make a mockery of administration of criminal justice. (Para - 51) [640-H; 641-:A-C]

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

4. On facts, right of private defence was available to accused-respondent No.1 as rightly held by the High ) Court. (Para - 53) ·[641-D-E]

E Case Law Reference

AIR (1968) SC 702; Relied on Para - 9

AIR (1975) SC 1478;

AIR (1977) SC 2226;

AIR (1979) SC 577;

AIR (1979) SC 391

AIR (1963) SC 612 Relied on Para - 12

AIR (1975) SC 87; Relied on Para - 13 G

(1996) 1 sec 458;

(2002 (8) sec 354 ·-

AIR (1991) SC 1316 Relied on Para - 14 _,,,

AIR (1971) SC 1857 Relied on Para - 15 t- H

SATYANARAIN YADAV v. GAJANAND &ANR. 615

)- (2005} 1 o sec 358 Relied on Para - 18 A

...........

(1934) 61 IA 398; Relied on Para - 25

AIR 1945 PC 151; Relied on Para - 29

AIR (1954) SC 36; Relied on Para - 30

(1952) SCR 193; Relied on Para - 32 B

(1953) SCR 418; Relied on Para - 33

AIR (1955) SC 807; Relied on Para - 35

(1955) 2 SCR 1285; Relied on Para - 36

(1961) 3 SCR 120; Relied on Para - 37 c

(1963) 2 SCR 405; Relied on Para - 38

(1973) 2 sec 793; Relied on Para - 39

(1979) 1 sec 355; Relied on Para - 41 D (1996} 9 sec 225; Relied on Para - 42 - ..

(2002) 3 sec 57; Relied on Para - 43

(2002) 4 sec 85; Relied on Para - 44

(2002) 6 sec 470 Relied on Para - 45 E

(2003) 12 sec 606 Relied on Para - 46

(2006) 10 sec 313 Relied on Para - 47

(1988) 4 sec 302 Relied on Para - 51

(2003) 1 sec 56 Relied on Para - 52 F

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 305 of 2001

From the final Judgment and Order dated 10.8.2000 of the High Court of Judicature for Rajasthan, Bench at Jaipur in G D.B. Crl. Appeal No. 628/1999

(\nurag Sharma, Joseph Pookatt, Prashant Kumar,

"'" Aruneshwar Gupta, Kumar Kartikay, Ranvijay and Pratibha Jain -=1 for the Appearing Parties.

A The Judgment of the Court was delivered by -~

Dr. ARIJIT PASAYAT, J. 1. These two appeals are directed ............. against the judgment of a Division Bench of the Rajasthan High Court directing acquittal of respondent Gajanand. One appeal

B has been filed by the informant while the other has been filed by the State. The trial Court i.e. learned Additional Sessions Judge, No.2, Bundi, Rajasthan, had convicted Gajanand for offence pun- ) ishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- with default stipulac tion. Co-accused Mahavir was, however, acquitted.

2. Background facts in a nutshell are as follows:

Kana (PW-13) lodged a First Information Report (Ext. P-

2) that whi!e he and his brother Devi Lal (hereinafter referred to D as 'deceased') were working in the field, respondent No.1- Gajanand and Mahavir objected to it and caused injury tq him. It was stated that Gajanand was having an axe in his hand and he caused injuries to Devi Lal on his head. Earlier, a case under > ,,

Section 307 IPC was registered but on the death of Devi Lal E charge under Section 302 IPC was added. After completion of investigation, challans were submitted against Gajanand and Mahavir.

3. As appears from the firstinformation report the infor-

F mant had stated that while they were harvesting the wheat at the agricultural land in the morning two cow boys were grazing . their goats. When loss was caused to the crops, Devi Lal asked them not to do so. They insisted that goats would be grazed and their names were Gajanand and Mahavir. When Devi Lal further asked them not to do so, Gajanand gave a blow of axe G on the left side of his head and the deceased fell down. Thereafter, Mahavir assaulted with fists and the handle of the axe. t= Thereafter both of them fled away. ..

4. Charge sheet under Section 302 as well as under Sec-

..,., .

tion 302 read with Section 149 was filed separately against ...

SATYA NARAIN YADAV v. GAJANAND &ANR. 617

[DR. ARIJIT PASAYAT, J.] -

accused persons. The accused persons pleaded innocence.

A / Sixteen witnesses were examined to further the prosecution version. Kana (PW-13) was stated to be an eye-witness. The Trial Court found Gajanand guilty of offence punishable under Section 302 IPC. Mahavir, as noted above, was acquitted.

-f Present respondent preferred an appeal before the High Court B which by the impugned judgment set aside the conviction.

5. The accused had taken the stand during trial that when Mahavir was trying to drive out the goat which entered into the field of Devi Lal, he was given beatings by the deceased and two lathi blows were inflicted on him. When Gajanand came to c .. his rescue, he was also addressed in contemptuous manner and was given two lathi blows.

6. It was stated that by exercising the right of private defence, two blows were given by Gajanand and, therefore, the D accused person cannot be convicted. The High Court has accepted this stand of the accused and held that the right of private defence is available.

7. In support of the appeal filed by the State and the informant it is submitted that the trial Court has erroneously held that E the accused were exercising the right of private defence.

8. Learned counsel for the accused-Gajanand submitted that when injury was caused by lathi not only on Mahavir but also to Gajanand-respondent, it cannot be said that they were

...( not exercising the right of private defence. In any event, accord- F

ing to him, if parameters of appeal against acquittal are kept in view, no interference is called for.

9. Only question which needs to be considered is the alleged exercise of right of private defence. Section 96, IPC pro- G vides that nothing is an offence which is done in the exercise of

-...,- the right of private defence. The Section does not define the I expression 'right of private defence'. It merely indicates that • nothing is an offence which is done in the exercise of such right.

Whether in a particular set of circumstances, a person legiti- H

"""' A mately acted in the exercise of the right of private defence is a - question offact to be determined on the facts and circumstances of each case.· No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is B not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right

of private defence was. legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is c available to be considered from the material on record. Under

Section 105 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on the ac.cused, who sets up the plea of self-defnce, and, in the absence of proof, it is riot possible'for the Court to presume the truth of the plea of self-

D defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by-elic- >

iting necessary facts from the witnesses examined for.the prosecution. An accused taking the plea of the right of private de-

E fence is not necessarily required to call evidence; he can establfsh his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence.is pleaded, the F defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary

for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accu:.ed. The burden of establishing the plea of self-defence is on the accused G and the burden stands discharged by showing preponderance of probabilifies in favour of that plea on tr2 basis of the material ' on record. (See Munshi Ram and Ors. 1. Delhi Administration

'I"" I'= (AIR 1968 SC 702), State of Gujarat v Bai Ff!tima (AIR 1975 ' SC 1478), State of UP v Mohd. Musheer Khan (AIR 1977

H SC 2226), and Mohinder Pal .Jolly v. State of Punjab (AIR 197·9

SATYA NARAIN YADAV v. GAJANAND &ANR. 619

[DR. ARIJIT PASAYAT, J.]

I('

SC 577). Sections 100 to 101 define the extent of the right of A private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the

-f assault. The oft quoted observation of this C'ourt in Salim Zia v.

B State of UP (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, c

ire. the accused need not establish the plea to the hilt and ' may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence." o.

-1 .. ..

10. The accused need not prove the existence of the right

\ of private defence beY-ond reasonable doubt. It is enough for , ' him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

11. A plea of right of private defence cannot be based on

... surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant

\ whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private F ..( defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section

...., 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may G • be exercised in the case of any offence against the body, and in

I the case of offences of theft, robbery, mischief or criminal tres- .... pass, and attempts at such offences in relation to property. Sec- Ill tion 99 lays down the limits of the right of private defence. Sec- \ . tions 96 and 98 give a right of private defence against certain H

-.I

"~ A offences and acts. The right given under Sections 96 to 98 and . I • 100 to 106 is controlled by Section 99. To claim a right of pri-

,_...,..

vate defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or griev- B ous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to ) causing of death. Sections 100 and 101, !PC define the limit and extent of right of private defence.

""'

12. Sections 102_and 105, IPC deal with commencement c and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reason- - able apprehension of danger to the body arises from an attempt, ..

or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable ap- D prehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev. v. State of Punjab (Al R 1963 SC 612), it was observed that as soon as > ~-

the cause for reasonable apprehension disappears and the

~, threat has either been destroyed or has been put to route, there E can be no occasion to exercise the right of private defence.

13. In order to find whether right ofprivate defence is available or not, the injuries received by the accused, the imminence • of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have re- F course to public authorities are all relevant factors to be considr

ered. Similar view was expressed by this Court in Biran Singh

)I.

v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v.

State of Punjab (1996) 1 SCC 458, Sekaralias Raja Sekharan ,....

v. State represented by Inspector of Police, TN. (2002 (8) SCC -4

G 354).

14. As noted in Butta Singh v. The State of Punjab (AIR ,.

1991 SC 1316), a person who is appretiendirig death or bodily -,.. l•

injury cannot weigh in golden scales in the spur of moment and >-

H in the heat of circumstances, the number of injuries required to

SATY;\ NARAIN YADAV v. GAJANAND & ANR. 621

[DR. ARIJIT PASAYAT, J.]

~ disarm the assailants who were armed with weapons. In mo- A ...,.... ments of excitement and d1sturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and B

~ the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach c has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the D original aggressor, even after the cause of reasonable appre- .. hension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.

15. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See

Vidhya Singh v. State of M.P (AIR 1971 SC 1857). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion F J of the moment, confronted with a situation of peril and not by .<( any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objec- G

~ tivity which would be so natural in a Court room, or that which 4 would seem absolutely necessary to a perfectly cool bystander.

The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any aritt, imetical exactitude of only that much which is re- H

A quired in the thinking of a man in ordinary times or under normal

circumstances.

16. In the illuminating words of Russel (Russel on Crime, 11 1h Edition Volume I at page 49):

" .... a man is justified in resisting' by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not-obliged to retreat, and may not merely resist'the attack where, he $tands but may indeed pursue his adversary t,.mtil the danger is ended and if in a conflict betWeen them he happens to kill his attacker, such killing is justifiable." . . . .

17. The right of private defence is essentially a defensive rigbtcircumscribed by the governing statute i.e. the IPC, avail- D able only vyhen the circumstances clearly justify it. It should not

be allowed. to be pleaded or availed as a pre.text for a vindictiv_e, aggressive or retributive purpose of offence. It is a right of defence, nt of retribution, expected 'to repel unlawful .aggrs~ sion and -not as retaliatory measure. While providing for exr· E cise of the right, care has been taken in IPC not to provide and has not devised a mechanism-whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the n'eed to defend no longer survived. ·

18. The above position was. highlighted in, V Subramani aryd Anr. vs . . State .of Tamil Nadu (2005 .(10) SCC 358) and Genda Singh and Ors. v. Stat~ of-U.P .. (CriminaiAppeal arising out of SLP (Crl.) No.1029/07.disposed of on July 9,,2008).

; ' . . . •'; '

19. It alsc>would be necessary'and proper fo consider and clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure; 1973 (hereinafter referred to as "the present Code") deals with appeals. Seetion 372 expressly-declares that no appeal shall lie from any judgment or H order of a criminal court excepras provided by the Code or' by

.it

SATYA NARAIN YADAV v. GAJANAND &ANR. 623

[DR. ARIJIT PASAYAT, J.]

)""

any other law for the time being in force. Section 373 provides A 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 B 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 c

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 E 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 G

institued upon complaint and theHigh 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 sµb-section (4) for the grant'of spe.cial leave to appeal from an order of acquittal shall be entertained by the High Court after the expfry of six months, where the complainant is a public servant, and sixty days in every other ca$e, computed from the date of that ordr of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appea1 from an order of acquittal is refused, no appeal fr.om that order of acquittal shall lie under sub-section (1) or under subsection (2). - ' ·

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

21. 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 E 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

I , . •. only i.e. an appeal against an order of acquittal. ·

22. Bare reading of Section 378 of the present Code (ap- F peal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislatuie bn 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 G 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 determintion by the High Court in an ppeal against an order of acquittal. .

H 23; It cannot, however, be forgotten that in case of acquit-

SATYA NARAIN YADAV v. GAJANAND &ANR. 625

• )'

[DR. ARIJIT PASAYAT, J.]

tal, there is a double presumption in favour of the accused.

A 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 acquittaJ, the presumption of his innocence B is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

24. Though the above principles are well established, a . different note was struck in several decisions by various High Courts and eve~ by this Court. It is, therefore, appropriate if we c

consider some of the leading decisions on the point.

25. 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 D . acquitted by the trial court and the local Government directed

I ..... 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 E . 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 F

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 G conflicting views had been expressed by the High Courts in dif- ..., ferent 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 ac- H

.... ,

1 A cordingly 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

B 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 c order of acquittal, the Committee did not think it roper to discuss all the cases.

26. Lord Russel summed up the legal position thus:

"There is, in their opinion, no foundation fot the view,

D apparently supported by the judgments of some courts in

India, that the High Court has no power or jurisdiction to Jo. 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'

E 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."

27. 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, arid to reach the conclusion that upon that evidence the order of acquittal G should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code."

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

H "But in exercising the power conferred by the Code and

SATYA NARAIN YADAV v. GAJANAND &ANR. 627

.,...

[DR. ARIJIT PASAYAT, J.]

before reaching its conclusions upon fact, the High Court A 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 B has been acquitted at his trial; (3) the right of the accused t6 the benefit of any doubt; and ( 4) the slowness of an

appellate courtin 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 c 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."

(empasis supplied)

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

 30. So far as this Court is concerned, probably the first E 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 pun- F ishable under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain eyewitnesses.

31. Upholding the decision of the High Court and following the proposition of law in Shea Swarup (supra), a six-Judge G 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 H

A 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."

B (emphasis supplied)

. 32. 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 c 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 substan- D tial and compelling reasons.

33. 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 con- E tended 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 F law in observing that "when a strong 'prima facie' cc;1se is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed".

34. 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

SATYA NARAIN YADAV v. GAJANAND & ANR.

[DR ARIJIT PASAYAT, J.] 629

the accused had failed to explain the circumstances A appearing against him but only for very substantial and comp"elling reasons."

(emphasis supplied)

35. In Atley v. State of UP (AIR 1955 SC 807) this Court B 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 C 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 . 0 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.

ltis 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 F presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated."

(emphasis supplied) H

36. 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 H (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

rasons for holding that the trial court was wrong."

c (emphasis supplied)

37. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a three-Judge Bench considered almost all leading deci- , s'ions on the point and observed that there was no difficulty in

applying the principles laid down by the Privy Council and ac- D cepted by the Supreme Court. The Court, however, noted that . appellate courts found considerable difficulty in understanding

the scope of the words "substantial and compelling reasons" .used in certain decisions. It was observed inter-alia .as follows:

 "This Court obviously did not and could not add a condition E to Section 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court notonly 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 F 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 appro'ach to a case in disposing of such an appeal; a11d (3) the different phraseology used in the judgments of this Court, such as,

(1) 'substantial and compelling reasons', (i1) 'good and

SATYA NARAIN YADAV v. GAJANAND &ANR. 631 ,

[DR. ARIJIT PASAYAT, J.] _.

sufficiently cogent reasons', and (iii) 'strong reasons' are A 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 8 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."

38. Again, in M.G. Agarwalv. State of Maharashtra (1963) c

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, D _.._ 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 Surajpa/ 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 F 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 G observations were not intended to lay down a rigid or

'y 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 H

...,

A 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 Shea Swarup the presumption of innocence in favour of the

B accused 'is not certainly weakened by the fact that he has been acquitted at his trial'. Therefore, the test suggested .•

by the expression 'substantial and compelling reasons' should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent c decisions of this Court, for instance, in Sanwat Singh v.

State of Rajasthan and Harbans Singh v. State of Punjab (1962 Supp 1SCR104) and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded

D therein as perverse."

(emphasis supplied) ),.

39. Yet in another leading decision in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court

he.Id 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 F to the accused having been converted into an acquittal the horn- ).. age our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration."

G 40 . .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 H suffers from insufficient forensic appreciation. The dangers

SATYA NARAIN YADAV v. GAJANAND & ANR. 633

[DR. ARIJIT PASAYAT, J.]

""' r of exaggerated devotion to the rule of benefit of doubt at A ,.. 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 8 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 c 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 D . 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 E 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 F

~ . 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 G chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

(emphasis supplied) H

A 41. 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: B . "9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for .~ 'substantial and compelling reasons' only and courts used to launch on a search to discover those 'substantial and

c 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 D to the principles enunciated by the Privy Council in Sheo

Swarup v. R. Emperor and reaffirmed those principles . . After Sanwt 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 E .. conclusion bearing in mind the considerations mentioned by the Privy Council in Shea 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

F 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

G 1971 SC 460) Bhim Singh Rup Singh v. State of . Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that 'if two reasonable

"f conclusions can be reached on the basis of the evidence

H on record, the appellate court should not disturb the finding

SATYA NARAIN YADAV v. GAJANAND &ANR. 635

[DR. ARIJIT PASAYAT, J.]

of the trial court'. This, of course, is not a new principle. It A 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 B doubt. But, fanciful and ren:iote 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 c 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 0 which an accused person may claim, must be reasonable."

(emphasis supplied)

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

"VVhile sitting in judgment over an acquittal the appllate 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 F appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- G reappraise the evidence to arrive at its own conclusions."

43. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, referring to earlier decisions, the Court stated:

. "7. The paramount consideration of the court should be to H

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 t;:iken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."

44. In Bhagwan Singh v. State of M.P (2002) 4 SCC 85, D the trial court acquitted the accused but the High Court con--

victed them. Negativing the contention of the appellants that the Hig_h Court could not have disturbed the findings of fact of the trial co'urt even if that view was not correct, this Court observed:

"7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order .of acquittal is that the Court has full powers to review the evidence upon which an order of -acquittal is based and generally it will not interfere with the order of acquittal because by passing an or.der 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

SATYA NARAIN YADAV v. GAJANAND &ANR. 637

[DR. ARIJIT PASAYAT, J.]

,,. to the accused should be adopted. Such is not a jurisdiction A 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 B innocent. In a case where the trial court has taken a view .. ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not". c

45. In Harijana Thirupala v. Public Prosecutor, High Court of A.P (2002) 6 SCC 470, this Court said:

"12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal D has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with ... an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the E 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 F 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." ..

46. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 G 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 H

A 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 B to the accused should be adopted. The paramount r consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may r arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible c 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". \.- t D

47. Again in Kal/u v. State of MP (2006) 10 SCC 313, r

this Court stated:

"8. While deciding an appeal against acquittal, the power ) r

' of the appellate court is no less than the power.exercised

E 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 judgmentof 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, G

-~. \.... it should assign reasons for differing with the decision of ,...

the trial court." .h

\..._ (emphasis supplied) f

;:.

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

..,

......

H v. State of Karnataka (2007 ( 4) SCC 415), the following gen-

,.-

SATYA NARAIN YADAV v. GAJANAND &ANR. 639

[DR. ARIJIT PASAYAT, J.] y

eral principles regarding powers of the appellate court while deal- A ing 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.

B (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. c

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal D 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.

E (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person F shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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

-...

49. 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 exer- B cise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]: c "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the

~ evidence of such events may also be said to be dependent.

I- In a criminal case, different pieces of evidence directed to ' D 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 E guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."

50: Doubts would be called reasonable if they are free I F 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 per- ,._ sons arising from the evidence, or from the lack of it, as op- G posed 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.

51. The concepts of probability, and the degrees of it, can-

SATYA NARAIN YADAV v. GAJANAND &ANR.

[DR. ARIJIT PASAYAT, J.] 641

not obviously be expressed in terms of units to be mathemati- A cally 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 Bi intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be erpded, 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 Lordc ship then was) in State of UP v. Krishna Gopal (1988 (4) SCC 302).

52. The above position was highlighted in Krishnan and Anr. v. State represented by Inspector of Police (2003 (7) SCC 56).

53. Considering the background facts we are of the view that the High Court has rightly held that Gajanand was exercising the right of private defence. Therefore, there is no merit in these appea_ls which are dismissed accordingly.

S.K.S.

Appeals dismissed.