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CASE NO.:

Appeal (crl.) 853 of 2006

PETITIONER:

CHANDRAPPA & ORS

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 15/02/2007

BENCH:

C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT:

J U D G M E N T

Hon. C.K. Thakker, J.

The present appeal is filed against the judgment and

order of conviction dated November 24, 2005 passed by the

High Court of Karnataka in Criminal Appeal No. 1008 of

1999 whereby it set aside the order dated July 14, 1999

passed by the Additional Sessions Judge, Tumkur in

Sessions Case No. 16 of 1991 acquitting the accused

(appellants herein) of offences punishable under Sections

143, 147, 148, 302 and 324 read with Section 149 of the

Indian Penal Code ('IPC' for short).

Brief facts of the case are that Accused No. 2,

Somashekhara, Accused No. 8, Thammaiah and PW 8

Krishnaiah were running a Chit Transaction in which

successful members were given articles like vessels,

watches, sarees, cloth-pieces, etc. The said transaction

was conducted once a week in the shop of PW 8 Krishnaiah

and also at Kollapuradamma Temple at Hanumanthapura.

It is the case of the prosecution that on October 30, 1989,

one such transaction was held at about 5.30 p.m. in which

one Nagaraj, the successful bidder was given a copper

vessel (Kolaga). Nagaraj returned the vessel with his

maternal uncle as it was old and demanded a new vessel.

But the request was refused by the proprietors of the Chit

Transaction. It is further the prosecution case that at

about 9.30 p.m. on the same day, i.e. October 30, 1989,

near Hanumanthapura Bypass, when PW1 Veerabhadraiah

along with PWs 2, 3 and 4 (Chikkanna, Rudramurthy and

Puttiah) was proceeding, the Accused Nos. 1 to 8 who had

formed themselves into an unlawful assembly and were

armed with weapons like, knife, reapers and stones

attacked PWs 2 to 4. The accused caused injuries to all the

three persons. It is alleged that when the quarrel was going

on and PWs 2 to 4 were injured, deceased Anjinappa came

forward and intervened and went ahead to stop the quarrel.

Accused No. 8 Thammaiah took out a button knife from his

pocket and stabbed Anjinappa on the left side of his chest,

due to which Anjinappa slumped and fell on the ground.

Complainant Veerabhadraiah along with one Krishnaiah,

s/o Oblaiah carried Anjinappa in an autorickshaw to the

hospital. On the way to hospital, Anjinappa breathed his

last. The dead body of Anjinappa was then taken to the

General Hospital, Tumkur. The accused persons after

committing assault, threw the clubs and rippers at the spot

and ran away. At about 11.30 p.m., PW 13 Madhukar

Musale, Circle Inspector of Police, Tumkur received an

information about the incident of rioting that took place at

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Hanumanthapura. On being intimated by PSI, PW 7 A.R.

Shariff about the rioting and the injured being admitted to

General Hospital at Tumkur, PW 13 went to the hospital

and learnt that Anjinappa had died and the other three

injured persons were taking treatment. It is alleged that

PW 1, Veerabhadraiah, who was present in the hospital,

was questioned by PW 13. The information given by him

was recorded in writing as per Ex. P-1 as complaint and

was registered as Crime No. 86 of 1989 for offences

punishable Sections 143, 147, 148, 324 and 302 read with

Section 149 IPC. Accused No. 7 Tukaraiah died during the

pendency of the case and the trial abated against him.

Inquest over the dead body of deceased Anjinappa was

done and the dead body was sent for post-mortem

examination. PW 11 Dr. Hanumakka who conducted the

postmortem opined that the injuries were ante mortem in

nature. She found a punctured wound over the left 3rd

inter costal space extending from medial edge of the areola

of left nipple obliquely downwards and medially 2" x 2" size

with clean cut margin and fat protruding through the

wound the depth of which was 3= inches. Likewise,

injuries to PWs 2 to 4 were also proved by PW 12, Dr.

Chandrasekhara Prasad.

After completion of investigation, all the accused were

charged for offences punishable under Sections 143, 147,

148, 324, 302 read with Section 149 of IPC.

In order to substantiate its case, the prosecution

examined 13 witnesses. PWs 1 to 4 were portrayed as eye

witnesses and amongst them, PWs 2 to 4 were shown to be

injured persons. They supported the case of the

prosecution as to Chit Transaction, the incident which took

place at about 5.30 p.m. on October 30, 1989 as also the

assault at 9.30 p.m. on the same day.

The learned Additional Sessions Judge, however,

considering contradictions and discrepancies in the

deposition of eye witnesses, non-examination of Nagraj who

was the root cause of quarrel and Krishniah, son of

Obalaiah, who accompanied deceased Anjanianappa to

hospital, conflicting version as to injury sustained by

accused No. 1 Chandrappa, presence of the deceased and

injured witnesses at the Hanumanthapura Bypass at 9.30

p.m., mudamal knife not being the same with which the

deceased was assaulted, medical evidence as to injuries

sustained by prosecution witnesses and other

circumstances, held that in the facts and circumstances of

the case, it could not be conclusively established that the

prosecution had proved the case against the accused

beyond reasonable doubt. He, therefore, held that the

accused were entitled to benefit of doubt and accordingly

acquitted them.

In an appeal against an order of acquittal by the State,

the High Court reversed the order of the trial court. It

observed that on careful examination of evidence of PWs 1

to 4, it was clearly established that deceased Anjaniappa

was done to death by Accused No. 8 and PWs 2 to 4

sustained injuries in the course of incident. It was also

held by the High Court that contradictions and variations

were of minor nature which did not affect substratum of the

prosecution case and evidence of PWs 1 to 4 had remained

totally unshaken and there was a ring of truth running

through their testimony which inspired confidence

notwithstanding trivial omissions and discrepancies, which

did not go to the root of the matter. The High Court,

accordingly, set aside acquittal recorded by the trial court

and convicted the appellants for various offences as ordered

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in the final paragraph 55 of the judgment.

Being aggrieved by the order of conviction and

sentence, the appellants have approached this Court.

Notice was issued by the Court on August 07, 2006 on

appeal as also on application for bail. On November 17,

2006, bail was refused but the Registry was directed to post

the matter for final hearing on January 16, 2007.

We have heard the learned advocates for the parties.

Mr. Sushil Kumar, Senior Advocate for the appellant-

accused contended that the accused having been acquitted

by the Trial Court ought not to have been convicted by the

High Court in an appeal against an order of acquittal. He

submitted that it is settled law that an order of acquittal

can be set aside by the High Court only if the appellate

Court is satisfied that the reasons in support of acquittal

recorded by the Trial Court are non-existent, extraneous,

perverse, acquittal palpably wrong, totally ill-founded or

wholly misconceived; the Court had 'obstinately blundered'

or reached the conclusion, 'wholly wrong', 'manifestly

erroneous' or 'demonstrably unsustainable', which resulted

in miscarriage of justice. According to him, the view taken

by the Trial Court was legal, proper and in consonance with

law and the High Court, in an appeal against acquittal,

ought not to have disturbed the order even if two views

were possible. He, therefore, submitted that the appeal

deserves to be allowed and the appellants are entitled to

acquittal.

Mr. Hegde, learned counsel for the respondent-State

supported the order passed by the High Court. He

submitted that once an order of acquittal is challenged by

the State, the appellate course has all the powers which

were exercised by the Trial Court and it is open to the

appellate Court to reappreciate and review such evidence

and to come to its own conclusion. On facts, the counsel

submitted that the High Court, considering the ground

reality as to possibility of contradictions and omissions held

that they did not affect the genesis or substratum of

prosecution case and convicted the accused. The order

does not suffer from legal infirmity calling for interference

under Article 136 of the Constitution and the appeal

deserves to be dismissed.

In view of rival submissions of the parties, we think it

proper 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 present

Code') deals with appeals. Section 372 expressly declares

that no appeal shall lie from any judgment or order of a

Criminal Court except as provided by the Code or by any

other law for the time being in force. Section 373 provides

for filing of appeals in certain cases. Section 374 allows

appeals from convictions. Section 375 bars appeals in

cases where the accused pleads guilty. Likewise, no appeal

is maintainable in petty cases (Section 376). Section 377

permits appeals by the State for enhancement of sentence.

Section 378 confers power on the State to present an

appeal to the High Court from an order of acquittal. The

said section is material and may be quoted in extenso;

378. Appeal in case of acquittal.\027(1) Save as

otherwise provided in sub-section (2) and subject to

the provisions of sub-sections (3) and (5), the State

Government may, in any case, direct the Public

Prosecutor to present an appeal to the High Court

from an original or appellate order of acquittal passed

by any Court other than a High Court, or an order of

acquittal passed by the Court of Session in revision.

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(2) If such an order of acquittal is passed in any

case in which the offence has been investigated by the

Delhi Special Police Establishment constituted under

the Delhi Special Police Establishment Act, 1946 (25

of 1946), or by any other agency empowered to make

investigation into an offence under any Central Act

other than this Code, the Central Government may

also direct the Public Prosecutor to present an appeal,

subject to the provisions of sub-section (3), to the high

Court from the order of acquittal.

(3) No appeal under sub-section (1) or sub-

section (2) shall be entertained except with the leave

of the High Court.

(4) If such an order of acquittal is passed in any

case instituted upon complaint and the High Court,

on an application made to it by the complainant in

this behalf, grants special leave to appeal from the

order of acquittal, the complainant may present such

an appeal to the High Court.

(5) No application under sub-section (4) for the

grant of special leave to appeal from an order of

acquittal shall be entertained by the High Court after

the expiry of six months, where the complainant is a

public servant, and sixty days in every other case,

computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-

section (4) for the grant of special leave to appeal from

an order of acquittal is refused, no appeal from that

order of acquittal shall lie under sub-section (1) or

under sub-section (2).

Whereas Sections 379-380 cover special cases of

appeals, other sections lay down procedure to be followed

by appellate courts.

It may be stated that more or less similar provisions

were found in the Code of Criminal Procedure, 1898

(hereinafter referred to as 'the old Code') which came up for

consideration before various High Courts, Judicial

Committee of the Privy Council as also before this Court.

Since in the present appeal, we have been called upon to

decide the ambit and scope of the power of an appellate

Court in an appeal against an order of acquittal, we have

confined ourselves to one aspect only, i.e. an appeal against

an order of acquittal.

Bare reading of Section 378 of the present Code

(Appeal in case of acquittal) quoted above, makes it clear

that no restrictions have been imposed by the Legislature

on the powers of the appellate Court in dealing with

appeals against acquittal. When such an appeal is filed, the

High Court has full power to 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

appeal against an order of acquittal.

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 available to

him under the fundamental principle of criminal

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jurisprudence that every person should be presumed to be

innocent unless he is proved to be guilty by a competent

court of law. Secondly, the accused having secured an

acquittal, the presumption of his innocence is certainly not

weakened but reinforced, reaffirmed and strengthened by

the trial Court.

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.

The first decision was rendered by Judicial Committee

of the Privy Council in Sheo Swarup & Ors. v. King Emperor,

(1934) 61 IA 398 : AIR 1934 PC 227(2). In Sheo Swarup, the

accused were acquitted by the Trial Court and the Local

Government directed the Public Prosecutor to present an

appeal to the High Court from an order of acquittal under

Section 417 of the old Code, (similar to Section 378 of the

present Code). At the time of hearing of appeal before the

High Court, it was contended on behalf of the accused that

in an appeal from an order of acquittal, it was not open to

the appellate Court to interfere with the findings of fact

recorded by the trial Judge unless such findings could not

have been reached by him had there not been some

perversity or incompetence on his part. The High Court,

however, declined to accept the said view. It held that no

condition was imposed on the High Court in such appeal. It

accordingly reviewed all the evidence in the case and having

formed an opinion of its weight and reliability different from

that of the Trial Judge, recorded an order of conviction. A

petition was presented to His Majesty in Council for leave to

appeal on the ground that conflicting views had been

expressed by the High Courts in different parts of India

upon the question whether in an appeal from an order of

acquittal, an appellate Court had the power to interfere

with the findings of fact recorded by the Trial Judge. Their

Lordships thought it fit to clarify the legal position and

accordingly upon the 'humble advice of their Lordships',

leave was granted by His Majesty. The case was, thereafter,

argued. The Committee considered the scheme and

interpreting Section 417 of the Code (old Code) observed

that there was no indication in the Code of any limitation or

restriction on the High Court in exercise of powers as an

appellate Tribunal. The Code also made no distinction as

regards powers of the High Court in dealing with an appeal

against acquittal and an appeal against conviction. Though

several authorities were cited revealing different views by

High Courts dealing with an appeal from an order of

acquittal, the Committee did not think it proper to discuss

all the cases.

Lord Russel summed up the legal position thus;

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

apparently supported by the judgments of some

Courts in India, that the High Court has no power or

jurisdiction to reverse an order of acquittal on a

matter of fact, except in cases in which the lower

Court has 'obstinately blundered', or has 'through

incompetence, stupidity or perversity' reached such

'distorted conclusions as to produce a positive

miscarriage of justice', or has in some other way so

conducted itself as to produce a glaring miscarriage of

justice, or has been tricked by the defence so as to

produce a similar result".

His Lordship, then proceeded to observe:

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"Sections 417, 418 and 423 of the Code give to

the High Court full power to review at large the

evidence upon which the order of acquittal was

founded, and to reach the conclusion that upon that

evidence the order of acquittal should be reversed. No

limitation should be placed upon that power, unless it

be found expressly stated in the Code."

The Committee, however, cautioned appellate courts

and stated;

But in exercising the power conferred by the

Code and before reaching its conclusions upon fact,

the High Court should and will always give proper

weight and consideration to such matters as (1) the

views of the trial Judge as to the credibility of the

witnesses; (2) the presumption of innocence in favour

of the accused, a presumption certainly not weakened

by the fact that he has been acquitted at his trial; (3)

the right of the accused to the benefit of any doubt;

and (4) the slowness of an appellate Court in

disturbing a finding of fact arrived at by a Judge who

had the advantage of seeing the witnesses. To state

this however is only to say that the High Court in

its conduct of the appeal should and will act in

accordance with rules and principles well known

and recognized in the administration of justice".

(emphasis supplied)

In Nur Mohammad v. Emperor, AIR 1945 PC 151, the

Committee reiterated the above view in Sheo Swarup and

held that in an appeal against acquittal, the High Court has

full powers to review and to reverse acquittal.

So far as this Court is concerned, probably the first

decision on the point was Prandas v. State, AIR 1954 SC 36

(Though the case was decided on March 14, 1950, it was

reported only in 1954). In that case, the accused was

acquitted by the trial Court. The Provincial Government

preferred an appeal which was allowed and the accused

was convicted for offences punishable under Sections 302

and 323 IPC. The High Court, for convicting the accused,

placed reliance on certain eye-witnesses.

Upholding the decision of the High Court and

following the proposition of law in Sheo Swarup, a six-

Judge Bench speaking through Fazl Ali, J. unanimously

stated:

"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 P. C, 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)

In Surajpal Singh v. State, 1952 SCR 193 : AIR 1952

SC 52, a two-Judge Bench observed that it was well

established that in an appeal under Section 417 of the (old)

Code, the High Court had full power to review the evidence

upon which the order of acquittal was founded. But it was

equally well-settled that the presumption of innocence of

the accused was further reinforced by his acquittal by the

trial court, and the findings of the trial court which had the

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advantage of seeing the witnesses and hearing their

evidence could be reversed only for very substantial and

compelling reasons.

In Ajmer Singh v. State of Punjab, 1953 SCR 418 : AIR

1953 SC 76, the accused was acquitted by the trial Court

but was convicted by the High Court in an appeal against

acquittal filed by the State. The aggrieved accused

approached this Court. It was contended by him that there

were 'no compelling reasons' for setting aside the order of

acquittal and due and proper weight had not been given by

the High Court to the opinion of the trial Court as regards

the credibility of witnesses seen and examined. It was also

commented that the High Court committed an error of law

in observing that "when a strong 'prima facie' case is made

out against an accused person it is his duty to explain the

circumstances appearing in evidence against him and he

cannot take shelter behind the presumption of innocence

and cannot state that the law entitles him to keep his lips

sealed."

Upholding the contention, this Court said;

"We think this criticism is well-founded. After an

order of acquittal has been made, the presumption of

innocence is further reinforced by that order, and that

being so, the trial court's decision can be reversed not

on the ground that the accused had failed to explain

the circumstances appearing against him but only for

very substantial and compelling reasons.

(emphasis supplied)

In Atley v. State of Uttar Pradesh, 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 S.

417, Criminal P.C. came to the conclusion that the

judgment of acquittal under appeal was perverse it

could not set aside that order.

It has been laid down by this Court that it is

open to the High Court on an appeal against an

order of acquittal to review the entire evidence and to

come to its own conclusion, of course keeping in

view the well established rule that the presumption

of innocence of the accused is not weakened but

strengthened by the judgment of acquittal passed by

the trial court which had the advantage of observing

the demeanour of witnesses whose evidence have

been recorded in its presence.

It is also well settled that the court of appeal has

as wide powers of appreciation of evidence in an

appeal against an order of acquittal as in the case of

an appeal against an order of conviction, subject to

the riders that the presumption of innocence with

which the accused person starts in the trial court

continues even up to the appellate stage and 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)

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In Aher Raja Khima v. State of Saurashtra, (1955) 2

SCR 1285 : AIR 1956 SC 217, the accused was prosecuted

under Sections 302 and 447 IPC. He was acquitted by the

trial Court but convicted by the High Court. Dealing with

the power of the High Court against an order of acquittal,

Bose, J. speaking for the majority (2:1) stated; "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" (emphasis supplied).

Venkatarama Ayyar, J. (minority), in his dissenting

judgment stated:

"Do the words "compelling reasons" in the above

passage import a limitation on the powers of a court

hearing an appeal under Section 417 not applicable to

a court hearing appeals against conviction? If they do,

then it is merely the old doctrine that appeals against

acquittal are in a less favoured position, dressed in a

new garb, and the reasons for rejecting it as unsound

are as powerful as those which found favour with the

Privy Council in Sheo Swarup v. King-Emperor, AIR

1934 PC 227 and Nur Mohammad v. Emperor, A.I.R.

1945 P.C. 151. But it is probable that these words

were intended to express, as were the similar words of

Lord Russell in Sheo Swarup that the court, hearing

an appeal under section 417 should observe the rules

which all appellate courts should, before coming to a

conclusion different from that of the trial court. If so

understood, the expression "compelling reasons"

would be open to no comment. Neither would it be

of any special significance in its application to

appeals against acquittals any more than

appeals against conviction".

(emphasis supplied)

In Sanwat Singh v. State of Rajasthan, (1961) 3 SCR

120 : AIR 1961 SC 715, a three-Judge Bench considered

almost all leading decisions on the point and observed that

there was no difficulty in applying the principles laid down

by the Privy Council and accepted by the Supreme Court.

The Court, however, noted that appellate courts found

considerable difficulty in understanding the scope of the

words "substantial and compelling reasons" used in certain

decisions. Subba Rao, J., (as His Lordship then was) stated:

"This Court obviously did not and could not add a

condition to s. 417 of the Criminal Procedure Code.

The words were intended to convey the idea that an

appellate court not only shall bear in mind the

principles laid down by the Privy Council but also

must give its clear reasons for coming to the

conclusion that the order of acquittal was wrong".

The Court concluded:

"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's case

afford a correct guide for the appellate court's

approach to a case in disposing of such an appeal;

and (3) the different phraseology used in the

judgments of this Court, such as, (i) "substantial and

compelling reasons", (ii) "good and sufficiently cogent

reasons", and (iii) "strong reasons" are not intended to

curtail the undoubted power of an appellate court in

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an appeal against acquittal to review the entire

evidence and to come to its own conclusion; but in

doing so it should not only consider every matter on

record having a bearing on the questions of fact and

the reasons given by the court below in support of its

order of acquittal in its arriving at a conclusion on

those facts, but should also express those reasons in

its judgment, which lead it to hold that the acquittal

was not justified".

Again, in M.G. Agarwal v. State of Maharashtra, (1963)

2 SCR 405 : AIR 1963 SC 200, the point was raised before a

Constitution Bench of this Court. Taking note of earlier

decisions, Gajendragadkar, J. (as His Lordship then was)

laid down the principle in the following words:

"In some of the earlier decisions of this Court,

however, in emphasising the importance of adopting a

cautious approach in dealing with appeals against

acquittals, it was observed that the presumption of

innocence is reinforced by the order of acquittal and

so, 'the findings of the trial Court which had the

advantage of seeing the witnesses and hearing their

evidence can be reversed only for very substantial and

compelling reasons' : vide Surajpal Singh v. The State

[(1952) S.C.R. 193, 201]. Similarly in Ajmer Singh v.

State of Punjab [(1953) S.C.R. 418], it was observed

that the interference of the High Court in an appeal

against the order of acquittal would be justified only if

there are 'very substantial and compelling reasons to

do so'. In some other decisions, it has been stated that

an order of acquittal can be reversed only for 'good

and sufficiently cogent reasons' or for 'strong reasons'.

In appreciating the effect of these observations, it

must be remembered that these observations were not

intended to lay down a rigid or inflexible rule which

should govern the decision of the High Court in

appeals against acquittals. They were not intended,

and should not be read to have intended to introduce

an additional condition in clause (a) of section 423(1)

of the Code. All that the said observations are

intended to emphasise 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 the case of Sheo Swarup, the presumption

of innocence in favour or the accused 'is not certainly

weakened by the fact that he has been acquitted at

his trial'. Therefore, the test suggested by the

expression 'substantial and compelling reasons'

should not be construed as a formula which has to be

rigidly applied in every case. That is the effect of the

recent decisions of this Court, for instance, in Sanwat

Singh v. State of Rajasthan and Harbans Singh v.

State of Punjab [(1962) Supp. 1 S.C.R. 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)

Yet in another leading decision in Shivaji Sahabrao

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

Court held that in India, there is no jurisdictional limitation

on the powers of appellate Court. "In law there are no

fetters on the plenary power of the appellate Court to review

the whole evidence on which the order of acquittal is

founded and, indeed, it has a duty to scrutinize the

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probative material de novo, informed, however, by the

weighty thought that the rebuttable innocence attributed to

the accused having been converted into an acquittal the

homage our jurisprudence owes to individual liberty

constrains the higher court not to upset the holding

without very convincing reasons and comprehensive

considerations."

Putting emphasis on balance between importance of

individual liberty and evil of acquitting guilty persons,

Krishna Iyer, J. said;

"Even at this stage we may remind ourselves of a

necessary social perspective in criminal cases which

suffers from insufficient forensic appreciation. The

dangers of exaggerated devotion to the rule of benefit

of doubt at the expense of social defence and to the

soothing sentiment that all acquittals are always good

regardless of justice to the victim and the community,

demand especial emphasis in the contemporary

context of escalating crime and escape. The judicial

instrument has a public accountability. The

cherished principles or golden thread of proof beyond

reasonable doubt which runs thro' the web of our law

should not be stretched morbidly to embrace every

hunch, hesitancy and degree of doubt. The excessive

solicitude reflected in the attitude that a thousand

guilty men may go but one innocent martyr shall not

suffer is a false dilemma. Only reasonable doubts

belong to the accused. Otherwise any practical

system of justice will then break down and lose

credibility with the community. The evil of acquitting

a guilty person light heartedly as a learned author

(Glanville Williams : 'Proof of Guilt') has saliently

observed, goes much beyond the simple fact that just

one guilty person has gone unpunished. If unmerited

acquittals become general, they tend to lead to a

cynical disregard of the law, and this in turn leads to

a public demand for harsher legal presumptions

against indicted 'persons' and more severe

punishment of those who are found guilty. Thus, too

frequent acquittals of the guilty may lead to a

ferocious penal law, eventually eroding the judicial

protection of the guiltless. For all these reasons it is

true to say, with Viscount Simon, that 'a miscarriage

of justice may arise from the acquittal of the guilty no

less than from, the conviction of innocent\005..' In

short, our jurisprudential enthusiasm for

presumed innocence must be moderated by the

pragmatic need to make criminal justice potent

and realistic. A balance has to be struck between

chasing chance possibilities as good enough to

set the delinquent free and chopping the logic of

preponderant probability to punish marginal

innocents". (emphasis supplied)

In K. Gopal Reddy v. State of Andhra Pradesh, (1979) 2

SCR 363 : (1979) 1 SCC 355 : AIR 1979 SC 387, the Court

was considering the power of the High Court against an

order of acquittal under Section 378 of the present Code.

Chinnappa Reddy, J. after considering the relevant

decisions on the point stated:

"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

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'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 & Ors. v. State of Rajasthan. In Sanwat Singh's

case, this Court harked back to the principles

enunciated by the Privy Council in Sheo Swamp v.

Emperor and re-affirmed those principles. After

Sanwat Singh v. State of Rajasthan, this Court has

consistently recognised the right of the Appellate

Court to review the entire evidence and to come to its

own conclusion, bearing in mind the considerations

mentioned by the Privy Council in Sheo Swarup's

case. Occasionally phrases like 'manifestly illegal',

'grossly unjust', have been used to describe the orders

of acquittal which warrant interference. But, such

expressions have been used more, as flourishes of

language, to emphasise the reluctance of the

Appellate Court to interfere with an order of acquittal

than to curtail the power of the Appellate Court to

review the entire evidence and to come to its own

conclusion. In some cases (Ramabhupala Reddy &

Ors. 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's case may be added the further

principle that "if two reasonable conclusions can be

reached on the basis of the evidence on record, the

Appellate Court should not disturb the finding of the

Trial Court". This, of course, is not a new principle. It

stems out of the fundamental principle of our criminal

jurisprudence that the accused is entitled to the

benefit of any reasonable doubt. If two reasonably

probable and evenly balanced views of the evidence

are possible, one must necessarily concede the

existence of a reasonable doubt. But, fanciful and

remote possibilities must be left out of account. To

entitle an accused person to the benefit of a doubt

arising from the possibility of a duality of views, the

possible view in favour of the accused must be as

nearly reasonably probable as that against him. If the

preponderance of probability is all one way, a bare

possibility of another view will not entitle the accused

to claim the benefit of any doubt. It is, therefore,

essential that any view of the evidence in favour

of the accused must be reasonable even as any

doubt, the benefit of which an accused person

may claim, must be reasonable". (emphasis

supplied)

In Ramesh Babulal Doshi v. State of Gujarat, (1996) 9

SCC 225, this Court said; "While setting in judgment over

an acquittal the appellate Court is first required to seek an

answer to the question whether the findings of the trial

Court are palpably wrong, manifestly erroneous or

demonstrably unsustainable. If the appellate Court answers

the above question in the negative the order of acquittal is

not to be disturbed. Conversely, if the appellate Court

holds, for reasons to be recorded, that the order of acquittal

cannot at all be sustained in view of any of the above

infirmities it can then-and then only-reappraise the

evidence to arrive at its own conclusions". In Alarakha

K. Mansuri v. State of Gujarat, (2002) 3 SCC 57, referring to

earlier decisions, the Court stated; "The paramount

consideration of the court should be to avoid miscarriage of

justice. A miscarriage of justice which may arise from the

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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 re-

appreciate the evidence in acquittal appeal for the purposes

of ascertaining as to whether the accused has committed

any offence or not. Probable view taken by the trial court

which may not be disturbed in the appeal is such a view

which is based upon legal and admissible evidence. Only

because the accused has been acquitted by the trial court,

cannot be made a basis to urge that the High Court under

all circumstances should not disturb such a finding".

In Bhagwan Singh & Ors. v. State of M.P., (2002) 4

SCC 85, the trial Court acquitted the accused but the High

Court convicted them. Negativing the contention of the

appellants that the High Court could not have disturbed

the findings of fact of the trial Court even if that view was

not correct, this Court observed;

"We do not agree with the submissions of the learned

counsel for the appellants that under Section 378 of

the Code of Criminal Procedure the High Court could

not disturb the finding of facts of the trial court even

if it found that the view taken by the trial court was

not proper. On the basis of the pronouncements of

this Court, the settled position of law regarding the

powers of the High Court in an appeal against an

order of acquittal is that the Court has full powers to

review the evidence upon which an order of acquittal

is based and generally it will not interfere with the

order of acquittal because by passing an order of

acquittal the presumption of innocence in favour of

the accused is reinforced. The golden thread which

runs through the web of administration of justice in

criminal case is that if two views are possible on the

evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence,

the view which is favourable to the accused should

be adopted. Such is not a jurisdiction limitation on

the appellate court but a 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 guilty is no less than from the

conviction of an innocent. In a case where the trial

court has taken a view ignoring the admissible

evidence, a duty is cast upon the High Court to

reappreciate the evidence in acquittal appeal for the

purposes of ascertaining as to whether all or any of

the accused has committed any offence or not".

In Harijana Thirupala v. Public Prosecutor, High Court

of A.P., Hyderabad, (2002) 6 SCC 470, this Court said;

"Doubtless the High Court in appeal either against an order

of acquittal or conviction as a court of first appeal has full

power to review the evidence to reach its own independent

conclusion. However, it will not interfere with an order of

acquittal lightly or merely because one other view is

possible, because with the passing of an order of acquittal

presumption of inn decree in favour of the accused gets

reinforced and strengthened. The High Court would not be

justified to interfere with order of acquittal merely because

it feels that sitting as a trial court would have proceeded to

record a conviction; a duty is cast on the High Court while

reversing an order of acquittal to examine and discuss the

reasons given by the trial court to acquit the accused and

then to dispel those reasons. If the High Court fails to make

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such an exercise the judgment will suffer from serious

infirmity".

In Ramanand Yadav v. Prabhunath Jha, (2003) 12

SCC 606, this Court observed; "There is no embargo on the

appellate Court reviewing the evidence upon which an order

of acquittal is based. Generally, the order of acquittal shall

not be interfered with because the presumption of

innocence of the accused is further strengthened by

acquittal. The golden thread which runs through the web of

administration of justice in criminal cases is that if two

views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused

should be adopted. The paramount consideration of the

Court is to ensure that miscarriage of justice is prevented.

A miscarriage of justice which may arise from acquittal of

the guilty is no less than from the conviction of an

innocent. In a case where admissible evidence is ignored, a

duty is cast upon the appellate Court to re-appreciate 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".

Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 :

AIR 2006 SC 831, this Court stated; "While deciding an

appeal against acquittal, the power of the Appellate Court is

no less than the power exercised while hearing appeals

against conviction. In both types of appeals, the power

exists to review the entire evidence. However, one

significant difference is that an order of acquittal will not be

interfered with, by an appellate court, where the judgment

of the trial court is based on evidence and the view taken is

reasonable and plausible. It will not reverse the decision of

the trial court merely because a different view is possible.

The appellate court will also bear in mind that there is a

presumption of innocence in favour of the accused and the

accused is entitled to get the benefit of any doubt. Further

if it decides to interfere, it should assign reasons for

differing with the decision of the trial court".

(emphasis supplied)

From the above decisions, in our considered view, the

following general principles regarding powers of appellate

Court while dealing with an appeal against an order of

acquittal emerge;

(1) An appellate Court has full power to review,

reappreciate and reconsider the evidence upon

which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no

limitation, restriction or condition on exercise

of such power and an appellate Court on the

evidence before it may reach its own

conclusion, both on questions of fact and of

law;

(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 against

acquittal. Such phraseologies are more in the

nature of 'flourishes of language' to emphasize

the reluctance of an appellate Court to interfere

with acquittal than to curtail the power of the

Court to review the evidence and to come to its

own conclusion.

(4) An appellate Court, however, must bear in

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mind that in case of acquittal, there is double

presumption in favour of the accused. Firstly,

the presumption of innocence available to him

under the fundamental principle of criminal

jurisprudence that every person shall be

presumed to be innocent unless he is proved

guilty by a competent court of law. Secondly,

the accused having secured his acquittal, the

presumption of his innocence is further

reinforced, reaffirmed and strengthened by the

trial court.

(5) If two reasonable conclusions are possible on the

basis of the evidence on record, the appellate

court should not disturb the finding of

acquittal recorded by the trial court.

Applying the above principles to the case on hand, we

are of the considered view that the learned counsel for the

accused is right in submitting that the High Court ought

not to have disturbed an order of acquittal recorded by the

trial Court. For acquitting the accused and extending them

the benefit of doubt, the trial Court observed that the

prosecution had failed to examine certain persons who

could have unfolded the genesis of the prosecution case.

The trial Court indicated that the root cause of the quarrel

was refusal to exchange copper vessel (Kolaga) to Nagraj,

winner of the draw, but he was not examined. Likewise,

Krishnaiah, son of Oblaiah, who accompanied injured

(deceased) Anjaniappa to the hospital, was not brought

before the Court. Though it is in evidence that Accused No.

1 Chandrappa was injured and was also taken to the

hospital alongwith Anjaninappa, some witnesses had

denied the fact as to injuries sustained by the Accused No.

1. The High Court did not give much weight to the said

circumstance observing that Accused No. 1 was neither

examined by a doctor nor a cross-complaint was filed by

him against the prosecuting party. In our view, the

submission of the learned counsel for the appellants is well

founded that it is not material whether Accused No. 1 had

or had not filed a complaint or he was or was not examined

by a doctor, but the fact that even though it was the case of

prosecution that Accused No. 1 was injured during the

course of incident, prosecution witnesses tried to suppress

that fact which would throw doubt as to the correctness of

the case or the manner in which the incident had

happened. The trial Court had also stated that it was

unnatural that the prosecution witnesses and deceased

Anjaninappa could have gone to Hanumanthapura Bypass

at about 9.30 p.m. when a shorter route was available for

going to their destination. The trial Court observed that

there was inconsistency in prosecution evidence as to

availability of electric light at the time of incident. The

Court also noted that the knife produced before the Court

as mudamal article was not the same which was used by

Accused No. 8 for inflicting injury on the deceased. There

was also no consistency in evidence as to injuries sustained

by prosecution witnesses.

In our view, if in the light of above circumstances, the

trial Court felt that the accused could get benefit of doubt,

the said view cannot be held to be illegal, improper or

contrary to law. Hence, even though we are of the opinion

that in an appeal against acquittal, powers of appellate

Court are as wide as that of the trial Court and it can

review, reappreciate and reconsider the entire evidence

brought on record by the parties and can come to its own

conclusion on fact as well as on law, in the present case,

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the view taken by the trial court for acquitting the accused

was possible and plausible. On the basis of evidence,

therefore, at the most, it can be said that the other view

was equally possible. But it is well-established that if two

views are possible on the basis of evidence on record and

one favourable to the accused has been taken by the trial

Court, it ought not to be disturbed by the appellate Court.

In this case, a possible view on the evidence of prosecution

had been taken by the trial Court which ought not to have

been disturbed by the appellate Court. The decision of the

appellate Court (High Court), therefore, is liable to be set

aside.

For the aforesaid reasons, the appeal deserves to be

allowed and is, accordingly, allowed. The order of

conviction and sentence recorded by the High Court is set

aside and the order of acquittal passed by the Additional

Sessions Judge, Tumkur is restored. The appellants are

hereby acquitted of the offences with which they were

charged. They are ordered to be set at liberty forthwith

unless their presence is required in any other case.