[2009] 2 S.C.R. 1175

STATE OF U.P.

A v

 DINESH Criminal Appeal No. 1271 of 2001'

FEBRUARY 25, 2009 B

(DR. ARIJIT P~SAYAT AND DR. MUKUNDAKAM

SHARMA, JJ)

Code 'ot Criminal Procedure, 1973:

~-3?8(/w Article 136 of the Constitution -Appeal against acquittal - Scope of - Discussed - Keeping in view the c

material infirmities and contradictions in evidence of witnesses

nd discrepancies in ocular version and medical evidence, High .. Court rightly acquitted the accused - Penal Code, 1860

- s. 302 -:-- Evidenc.~. Ocular version .vis-a-vis medical evidence -: . ConstitiJtioQ of India - Article 136.

The respondent along with another, namely, 'V'. was charged with the offence of m.urder. The prosecution case . was that when the complainant (PW-3) alongwith his brother-in-law. and others were go_ing to deliver milk, on E

.f 'I. ·• ; : • ! '. ·• the way, the accused armed with pistols ancf knife came out of the fields, caught hold of the brother-inlaw of PW- • 3, took him into the fields and fired at him from their pistols. The respondent also inflicted knife injuries to him.

The victim succumbed to the injuries. On the alarm raised F

by, PW~3, so.me persons from the nearby village came there and t.he accused fled away. The motive for the murder.was. told, fo be the dispute over a tractor., During the pendency of the trial, accused 'V' died. The trial court convicted the respondent of the offence charged and G ... sentenced him to imprisonment for life. The High Court

having acquitted the respondent, the State filed the .'<

appeal.

1175 H

A Dismissing the appeal, the Court

HELD: 1.1 Section 378 of the Code of Criminal Procedure, 1973 makes it clear that no restrictions have been imposed by the legislature on the powers of the

8 appellate court in dealing with appeals against acquittal.

In Chandrappa's case*, the Court has culled out the general principles regarding powers of appellate court while dealing with such an appeal. In case of acquittal, there is a double presumption in favour of the accused. :., Firstly, the presumption of innocence is available to him C 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 D weakened but reinforced, reaffirmed and strengthened by the court acquitting him. [para 7-8] (1183-E; 1183-G-H]

*Chandrappa and Ors. v. State of Karnataka 2007 (2 ) SCR 630 =2007 (4) SCC 415 - relied on.

E Prandas v. State AIR 1954 .. 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 :SGR 1285; Sanwat Singh v.

State of Rajasthan (1961) 3 SCR 120; M.G Agarwal v. State of F Maharashtra (1963) 2 SCR 405; Shivaj{ Sahabrao Bobade v.

State of Maharashtra 1973 (2) SCC 793; K. Gopa/ Reddy v.

State of A.P (1979) 1SCC355; 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 M.P G -(2002) 4 SCC 85; Harijana Thirupala v. Public Prosecutor,

High Court of A.P (2002) 6 SCC 470; Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606; Kal/u v. State of M.P

(2006) 10 sec 313 - referred to.

Shea Swarup v. R. Emperor (1934) 61IA398; Nur Mohd.

v. Emperor AIR 1945 PC 151 - referred to.

I ( I

STATE OF U.P. V. DINESH 1177

1.2 In the instant case, the discrepancies highlighted A, by the High Court cannot be stated to be trival. The conclusions arrived at by the High Court clearly establish material infirmities and contradictions in the evidence of the two vital witnesses, PWs. 3 and 4. It is true that PW.4 was a child of about 1 O years, but the court found him to B be in a position to depose. The High Court has found that the presence of PW.3 at the spot, in view of certain aspects highlighted in his cross-examination, is highly improbable. Though ocular testimony of witnesses had greater evidentiary value vis-a-vis medical evidence, but c when medical evidence totally improbablises the ocular testimony, that becomes a relevant factor in the process of evaluation of evidence. In the instant case, the med_ical evidence totally improbablises the version regarding the manner of assault by both the accused persons. There is 0 no merit in the appeal [para 34:.35] [1198-E-H; 1199-A-B] -

Case Law Reference

(1934) 61 IA 398

AIR 1945 PC 151

AIR 1954 SC 36

1952 SCR 193

1953 SCR 418

AIR 1955 SC 807

(1955) 2 SCR 1285

-(1961) 3 SCR 120

(1963) 2 SCR 405

1973 (2) sec 793

(1979) 1 sec 355

(1996) 9 sec 225

referred to

referred to

referred to

referred to

referred to

referred to

referred to

referred to

referred to -

referred to

referred to

referred to

para 10

para 14

para 15

para 17

para 18

_para 20

para 21

para 22 .

para 23

para 24

para 26

para 27

(2002) 3 sec 57 referred to para 28 ·,'' . . .

(2002) 4 sec 85 referred to para 29 ·

(2002) 6 sec 470 referred to para 30

(2003) .12 sec 606 referred to para 31.

 (2006) 10 sec 313 referred to para 32 . .

CRIMINALAPPELLATE JURISDICTION : CrlrnlhalAppeal No. 1271of2001 " , , c From ttie Judg.ement and Order dated 01.05.2000 Of the High Court of Judicature at Allahabad, Lucknow Bench; Lucknow in Cr1:.Appeal No. 148 of 1996 · . .

Shall Kumar Dwiv_edi, Gunnam Venkateswara Rao, .Sahdev Singh,'Vibha Dwivedi, for the Appeltatit.

D , .

Goodwill lndeevar, for the Respondent. ""

. ' .

The Judgement of the Court was delivered by

DR ARIJIT PASAYAT, J.

' E

1. Questioning correctness of the judgment of a Division Bench of the f.llahabad High Court directing acquittal of the respo11dent, this appeal has been filed by the Stat~ of Uttar

Pradesh: Learned iV Additional Sessions Judge, Lakhinipur, Kheri, had .convicted the. respondent for offence punishable F .· under Section 302 of the Indian' Penal Code, 1860 (in short 'IPC')

nd sentenced him· for Hf~· imprisonment in Sessions Trial

No.469/92. " ... ·.

'Jj.1

2. The prosecution versionJn a nutshell js as follo\Ns:

Complainant s'lta Srn (PW 3) filed a written report Ex.

Ka-1 on 24.5.1991 .at P.S. Kotwali, stating that he is a resident . of Mohammadpur, P.S. Kotwali, and his. sister is married to Amritlal, Amkotwa (hereinafter referred to as the 'deceased').

Today on 24.5.1991 he was going with his brother-in-law (sister's H 'husband) on a bicycle from village Saherua at AmkotWa after

delivering milk to Amebarati Lal at village Saherua. He was A accompanied by Ram Lakhan of Amkotwa and his nephew Rajesh. When they reached near Habib's field from village.

Saherua, two persons named Dinesh, the respondent and Vinod, belonging to village Amkotwa and armed with country made pistol and knife. They caugl:lt of the complainant's brother-in- S law, Amrit I-al witl:l hjs bicyde, took him into Habib's field saying they would take revenge by murdering him. Vi nod and Dinesh fired from the country made pistols at his brother-inlaw who got stuck arid fell down. Thereafter Dinesh assaulted him with a knife.

When the complainant raised alarm, Ramadhar, Prakash and c others from village Baheiya came arid challenged the assailants, who ran away towards Pachkotwa. On being pursued by the

people, they.threatened them. Thereafter the complainant and others gave up the chase. These persons murdered his brotherin-law because his brother-in-law's brother Radhey shiam had brought a tractor wbich was needed by Vinod: but his brother- D. in-law would not ailow Vi nod to u.se it. It is for this reason that the murder was committed. The dead body was lying in the field.

The incident took place at 1 o.3d a.m.' On the basis ofthe above written report, F. l.R. was written c:it P.S. Kotwali on 24.5.1991 at , 11.20 a.m. Thereafter the investigations in the case began. Sub- Inspector Vishw.a Nath Pandey prepared the inquest Ex. Ka-2 at the site, photo of the dead body Ex. Ka-10 was taken, specimen of the seal Ex. Ka-11. Memo for recovery of the bicycle at the site, Ex. Ka-12, Memo Ex. Ka-13 for collecting ordinary and blood stained soil from thesite. After completing· F investigations, charge sheet Ex. Ka-6 was filed against accused Vinod and Dinesh.

Since the accused persons pleaded innocence, trial was held.

G During the pendency of the trial, accused Vinod. died on 7.2.1994. Eight persons were examined to furthef the . prosecution version. PWs. 1 to 4 were stated to be eye-' witnesses to the occurrence. During trial Om Prakash (PW 1) and Ram Ohan (PW 2) resiled from their statementsmade H

"' .,

A during investigation and, therefore, prosecution with the .fpermission of the court, cross-examined them. The trial -Court found the evidence of Sita Saran and Rajesh Kunfar (PWs. 3 and 4) to be cogent and directed conviction as noted above.

The respondent field an appeal questioning the conviction as 8 recorded. The High Court noticed discrepancis in the evidence of PWs. 3 and 4. PW 3 was related to the deceased while PW4 was his son who was aged about 10 years at the time of

occurrerice. The High Court noticed that motive is not of much

~ importc; ince when credible evidence is available. If found that c the motive highlighted was too feeble to be of any consequence.

Apart from that the High Court found presence of PW3 to be highly improbable. It noticed that there was no sign of dragging at the place of occurrence as was stated by PWs. 3 and 4 and also there was no injury which could be co-related with dragging.

D All the injuries noticed were either incised injuries or on account of firearm. The High CO'urt found that both PWs-3 and 4 stated that respondent Dinesh and co-accused Vinod, who died, during trial fired one shot each from the guns held by them. The doctor who conducted post-mortem found that there was only one fire

E arm injury. To make up discrepancy PWs. 3 and 4 stated that certain empty cartridges and two live cartridges were found at the place of occurrence by the Investigating Officer. But the

Investigating Officer stated that he did not find either any empty cartridge or live cartridge at the scene of occurrence. It is to be further noted that both PWs 3 and 4 stated that while the F deceased was being restrained by one hand each by the two accused persons, they shot him from the other hand. In other words, their version was that the accused persons fired at the deceased from a very short distance. The doctor's evidence clearly ruled out this aspect. He noticed that only skin deep injury G was there and not any penetratingwound.PW.3 had stated that all the knife injuries were inflicted when the deceased was in a _,),

lying posture and according to Rajesh Kumar (PW.4) even at ...

that time both the accused persons were catching hands of the deceased. The doctor found that all the injuries found on the I

' H deceased were incised wounds and not a single puncture wound

was found on the deceased. The doctor further stated that there A

~ was no possibility of the incised injuries Nos.1 to 13 being caused to the deceased while he was lying on the ground.

To add to the vulnerability, the High Court pointed out that according to SI PW.7 Vishwanath Pandey inquest was B completed around noon time and the dead body was sent to the Mortuary at 1.45 p.m. on 24.5.1991. According to PW.3 Sita Saran, she had accompanied the dead body to the mortuary.

~ The post-mortem examination was, however, conducted at about 3.00 p.m. on 25.5.1991. From the perusal of the records c the High Court noticed that the papers were received at the mortuary on 25.5.1991 around 12.30 p.m. The High Court found it improbable that only the dead body was purportedly sent but no documents were sent.

The High Court further found that there were several D circumstances which belied prosecution claim that the FIR was lodged on 24.5.1991.

3. Learned counsel for the appellant submitted that the discrepancies highlighted by the High Court are not very material E to dis.card the prosecution version and the trial court's judgment should have been upheld.

4. 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") F 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 37 4 allows appeals from convictions. G.

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 H

A acquittal. Thesaid 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

B of Sl,.Jb-sections (3) and (5), the State Government may, in any case, dii-ect the Public Prosecutor to present an appeal to the CHigh Court from an original: or appellate order of

- acquittal passed by any court other than a High Court, or an orderof acquittal passed by the Court of Session in

. . --~· ; rev1s1on. c

(2) If suchan order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Poi ice Establishment constituted under the Delhi Special Police Establishmer:it Act, 1946 (25 of 1946), or

o~ by any other -gency 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-

E 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 ... f instituted upon complaint and the High Court, on an F application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to-appeal frortl 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. . ·

~ H

(6) If, in any case, the application under sub-section (4) for A the grant of specialleave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).

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

6. -it ay be stated that more or less similar provisions were found in the Code of Criminai Procedure, 1898 (hereinafter ·

referred to as "the old: Code") which cme up for consideration c before vario.us 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 appeU.ate court in an appeal .against an order of acquittal, we have cqnfined ouselves to one aspect only i.e. an 0 appeal against an order of acquittal. . '

 7. Bare reading of.Section 378 of the Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal.

E W_hen such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an F appeal against an order of acquittal.

8. It cannot, however, be forgotten that in case of acquittal,. there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person G should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

9. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.

10. The first important decision was rendered by the 8 Judicial Committee of the Privy Council in Sheo Swarup v. R.

Emperor(1934) 61IA398). 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 C (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 D been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed~ on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight E and reliability different from that of the trial Judge, recorded an order of conviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of F 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 G considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an Appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with H an appeal against acquittal and an appeal against conviction.

Though several authorities were cited revealing different views A

~ 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.

11. Lord Russel summed up the legal position thus: B "There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered', c 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 D defence so as to produce a similar result."

12. 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 E the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code."

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

"But in exereising the power conferred by the Code and before reaching its co'nclusions upon fact, the High Court should and will always give proper weight and G consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and ( 4) the slowness of an H

appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

To state this, however, is only to say that the High Court

in its conduct of tbe appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."

(ernphasis supplied)

14. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the Committee reiterated the above view in Sheo Swarup (Supra) c and held that in an appeal against acquittal, the High Court has

full powers to reviewand to reverse acquittal.

15. So far a~ this. Gou~ 'is cocemed, probab.ly the first decision on the. point was Prandas v. State (AIR 1954 SC 36) (though the case was decide~ 'on 14-3,-1f}50, it was reported D only in 1954). In tnat. case, the accused was acquitted by the

trial court. The Provindal. Government preferred an appeal which was allowed and.the accused was convicted for offences .

punishable. under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain E eyewitnesses. ,

16. Upholding the decision of the High Court and following the proposition of law in Shea Swarup (supra), a six-Judge Bench held as follows:

"6. It must be observed at the very outset that we cannot support the view which has been expressed in several cases that. the High Court has no power under Section 417, Criminal Procedure Code, tO reverse a judgment of acquittal, unless the judgment is perverse or the subordinate court has in some way or other misdirected itself so as. to produce a miscarriage of justice."

(emphasis supplied)

17. In Surajpal Singh v. State (1952 SCR 193), a two- H Judge Bench observed that it was well established that. in an

. '

appeal-under Section 417 of the (old} Code, the High Court A had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the presumption of innocence of the accused was further.reinforced by his acquittal by t.he trial court, .and the findings of the trial court which had the advantage of seeing the witnesses and B hearing their evidence could be reversed OfllY for very substantial and compelling reasons.

1. 8. In AjmerSingh v. Sta(f! 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. C The aggrieved accused approached this Court. It was contended by him that there were ino 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 credibilify of witnesses seen and examined. D

If was also commented tht the High Court committed an error of law in obserV'ing th'at "when a strong 'prima facie' case is made out against an accused person it is hiS duty to explain the circumstances apparlng in evidence against him and he cannot . take shlter behind the presumption of innocence and cannot E state that the Jaw entitles him to keep his lips sealed".

. ' . . .".· ,

.1~ .. 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 F further reinforced by that order, and that' being so, the trial court'.s .decision can be reversed not on the ground that

c.:.· theaccused had .. failed:to explain the circumstances ' appearing againsfhim but only for very substantial and compelling reasons." · (emphasis supplied) G

20. In Alley v. 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 H

Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set . aside that or.der. ·

It has been laid down by this Court that it is open to the High Court on an appeal against an. order of acquittal to . review the entire evidence and to. come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened butstrengthened by the judgment of acquittal passed by the trial court which had the advantage o.f observing the demeanour of witnesses whose evidence have been recorded in its presence.

. .

It is also well settled that the court of appeal has as wide. powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an. order of conviction, subject to the riders that the presumption of innocence with which the accused person . starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opin, ion 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)

. 21 .. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was prosecuted under Sections 302 and 441 IPC.' Hewas acquitted by the trial court but convicted by the)-f ig.tl CQurt. Dealing with the power of the High Court G agai.st an oid'er 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." H (emphasis supplied)

.I.

STATE OF U.P. V. DINESH

[DR. ARIJIT PASAYAT, J.] 1189

22. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR A 120, a three-Judge Bench considered almost all leading decisions on the point and observed that there was no difficulty in applying the principles laid down by the Privy Council and ·· accepted by the Supreme Court. The Court, however, noted that appeUC3te courts found considerable difficulty in understanding B the scope of the words "substantial and compelling reasons" used in certain decisions. It was observed inter-alia as follows:

"This Court obviously did not and could not add a condition to Section 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court C

not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong." D 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 Shea Swarup case afford a correct E 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', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are F 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 G · 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."

23. Again, in M.G Agarvvalv. State of Maharashtra (1963) H

A ,2 SCR 405, the point was raised before a Constitution Bench

ofthis Court. Taking note ofearlierdecisions, itwas observed

as follows: ' ·

"17. In some of the earlier decisions of .this.Gourt, however, in mphasising the importance of adopting a cautious approach in dealing wih .appeals against; acquittals, it was observed that the presum'ption of innocence is . reinforced by the order:of acquittal and so .. ; the findings of the trial court which had the advantag~ of seeing the witnesses C1nd hearing their evidence can be reversed only for very .substantial and compelling re(lSOns'.: \(ide Surajpal Singh, v. State (1952SCR1.93). Similarly in Ajmer Singh v. State of PunjabJt95~ SQR 418), it.was oberve.d . that th~ interference of the. High Court in. an appeal ag;;:iinst the order .of acquittal would be fustified only !f there are 'very substantial ar.d c.ompelling reasons to do so'. In some other decisions, it.has b.eer:i stated that an orderqf acquittal can be. reyersed only for 'go.od and sufficiently .cogent reasons'.or for 'strong reasons'. In a, ppreciating th~ effect of. these observations, it must be remembered that these observ.ations were not intended to; lay' down a rigid 'or inflexible rule wt"lich should govern .thE:l deci:=; ion f the Hig.h.

Court in appeals against acquittals'. They. were not . intended, and should not be read to have intended to introduce an ad<; iitional condition in clause (a) of section 423(1) of the Code . .All thatte said .observa.ti.on~ are - intended to .emprasize is, hat the approach .of the High Court in dealing with an appeatgainst acquitl .ought to be cautious because as Lord Russell .. observed, .in . Sheo Swa; up fhe pes4mP, tion of innqcence in.faqµ, r. of.the . . ccus:ed '.is not certainly weaken.edJ>y.hEl fa~Uatti.e has

been cquitted at his trial'. Therefore, the test suggested . by the expression 'substantial and compelling reason~·

should not be construed as a form-uia which has to b~ . 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 A (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)

24. Yet in another leading decision in Shivaji Sahabrao 8

Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court

... held that in India, there is no jurisdictional limitation on the powers of appellate court. "In law there are no fetters on the plenary power of the appellate court to review the whole evidence on c . which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de nova, informed1 however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing D reasons and comprehensive consideration."· . 25_. Putting emphasis on balance between importance of individual liberty and evil of acquitting guHty-persons, this Court observed as follows: E ''.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 benefifof doubt at " the expense of social defence and to the soothing F J 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 jmf.icial instrument has a public accountability. The cherished principles or golden thread G } of proof beyond reasoriable 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 H

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 per$On has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public _... demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious peril law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.. . .' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the'delinquent free and chqpping the logic of preponderant probability to punish marginal innocents." (emphasis supplied)

26. In K. Gopal Reddy v. State f A.P (1979) 1 SCC 355, • the Court was considering the power of the High Court against an order of acquittal under Section 378 of the Code. After considering the relevant decisions on the point it was stated as follows: .

' "9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and courts used to launch on a search to discover those_ 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this

j I

• ..

,._ .

Court in Sanwat Singh v. State of Rajasthan (1961) 3 A SCR 120. In Sanwat Singh case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles.

After Sanwat Singh v. State of Rajasthan this Court has consistently recognised the right of the appellate court to B review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant C interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In D some cases (Ramaphupala Reddy v. State of A.P., (AIR

1971 SC 460) Bhim Singh Rup Singh v. State of Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that 'if two reasonable E conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court'. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of F any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are p_ossible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left G out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is ~II one way, a bare H

~ G

possibility of another view will nc;>t entitle the. accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of ·

which an accused person may. claim, must be reasonable." (emphasis supplied)

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

"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong,

manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then onlyreappraise the evidence to arrive at its own conclusions." .

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

"7; The -paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of g!..lilty 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 up9_n the High Court to reapprecia'te the evidence in acquittal appeal for the purposes of ascertaining as to whether ttie accused has committed any offence or not.

Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based _upon legal and admissible evidence. Only because the accused-has been acquitted by the trial court, cannot be

~ made a ba_is to urge that the High Court under all A ~

circumstances should not disturb such a finding."

29. In Bhagwan Singh v. State of M.P (2002) 4 SCC 85, the trial court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High B Court could not have disturbed the findings of fact of the trial court even if that view was not correct, this Court observed:

"7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the _..

Code of Criminal Procedure the High Court could not c

-< . disturb the finding of fads of the trial court even if it found

that the view taen 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 D has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal te presumption of innocence in favour of the accused is reinforced. The golden thread which runs E through the web of administration of justice in.· criminal case is that if two views are possible on the evidence

Im!

~ adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction F 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 G

!- 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".

30. In Harijana Thirupala v. Public Prosecutor, High Court ' }. ._. of A.P (2002) 6 sec 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

B has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal ligh'tly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court ' c woul(j not be justified to interfere with order of acquittal

merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court D 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."

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

E 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 F further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is !hat 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 yiewwhich is favourable

G to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may

\. arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible • evidence is ignored, a duty is cast upon the appellate - H

court to reappreciate the evidence in a case where the A .., accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not". ' ...

32. Again in Kallu v. State of M.P (2006) 10 SCC 313, this Court stated: B

"8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. c _,.

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 dn evide'nce .

and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a D 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. Fu.rther if it decides to interfere, it should assign reasons for differing with the decision of E the trial court." (emphasis supplied)

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

v. State of Karnataka (2007 (4) SCC 415), the following general

~ ._ principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out: F

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no G limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and

•· .. compelling reasons", "good and sufficient grounds'\ "very strong H

A circumstances", "distorted conclusions", "glaring mistakes", etc. . .. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate cort to interfere with acquittal than to curtail _the B power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind1hat in case"of acquittal, there is double presumption in favour of the

C,,

accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence . . that every person shall be presumed to be innocent unless he is tproved guilty by a competent court of law. Secondly, the accused

I ) ..._ having secured his acquittal, the presumption of his innocence ....

is further reinforced, reaffirmed and strengthened by the trial D 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.

34. In the instant case the discrepancies highlighted by the High Court cannotbe stated to be trival. The conclusions arrived at by the High Court clearly establish material infirmities and contradictions on the evidence of the two vital witnesses PWs. 3 and 4. It is true that PW.4 was a child of about 10 years.

~ F But the-court had found him to be in a position to depose. But the High Court has found that the presence of PW.3 at the spot is highly improbable in view of certain aspects highlighted. One . of them was his claim to have accompanied the deceased to the house of one Barati Lal for delivering milk in a Milk Can. In

G his cross-examination he admitted that he does not know where the house pf the Barati Lal is. According to him, he and the deceased were returning after delivering the milk in a Can and the Can was tied to the cycle on which both. of them were travelling_, The Investigating Officer admitted that there was no ....

. ·. -H Can lying at the place of occurrence and in fact no seizure of

any Milk Can has been made. Apart from that the medical A evidence clearly rules out the manner of infliction of injuries as deposed. Though ocular testimony of witnesses had greater evidentiary value vis-a-vis medical evidence, but when medical evidence totally improbablises the ocular testimony, that becomes a relevant factor in the process of evaluation of B evidence. In the instant case the medical evidence totally improbablises the version regarding the manner of assault by both the accused persons as noted above.

35. Above being the position, we find no merit in this C . appeal, which is accordingly dismissed.

R.P.

Appeal dismissed .