REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO.1278 OF 2001

Murugan and Anr. …Appellants

Versus

State Rep. by Public Prosecutor

Madras, Tamil Nadu & Anr. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Challenge in this appeal is to the judgment of the learned

Single Judge of the Madras High Court setting aside the

judgment of acquittal recorded by learned Principal, Assistant

Sessions Judge, Tirunelveli. The appellant faced trial along

1

with one Velliah for alleged commission of offences punishable

under Section 307 and 307 read with Section 109 of the

Indian Penal Code, 1860 (in short ‘IPC’). Though the trial

Court found that the prosecution has not established the

case, in appeal filed by the State it was held by the High Court

that the prosecution established the accusations against the

appellants. But the acquittal so far as the Velliah A3 is

concerned, the High Court confirmed the acquittal.

2.Background facts in a nutshell are as follows:

Sankaralingam (PW1), Ramaiah (PW2) and Paramasivam

(PW6) are brothers. They reside at Marugal Kurichi village.

Accused 1 to 3 are also residing in the same village. Their

house is situated very near to the house of PWs. 1, 2 and 6.

Accused 1 and 2 are brothers.

On 2.10.1989 at about 5.00 p.m. Kannammal, the

mother of PWs. 1 and 2 went to the corner of the street to

collect water from the common water pipe. The third

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accused’s wife Manickam also came to take water. While

collecting water from the common pipe, there was a quarrel

between Kannammal and Manickam, the wife of third

accused. Ramaiah (PW 2) who noticed this, went there and

separated them and took his mother to his house.

Next day i.e. 3.10.1989 at about 7.30 a.m. Ramaiah

(PW.2), Sankaralingam (PW.1) and one Manickam, wife of

another brother, went to the well, which is situated in

Nallakannau Thevar’s garden, in order to take bath. When the

first accused came to know about the occurrence which took

place on the earlier day, he had grievance against PW.2

thinking that PW.2 abused the wife of the third respondent in

support of his mother.

At about 7.30 a.m. when PWs. 1 and 2 and another went

near the well, A1 to A3 waylaid them. A1 and A2 were having

‘Aruval’ with them. A3 caught hold of PW.2 from behind his

back. At that time, A1 and A2 with ‘Aruval’ attacked PW.2

indiscriminately on the back, left shoulder, right shoulder,

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hands, etc. PW.2 received number of bleeding injuries all over

the body and began to cry. Sankaralingam (PW.1) and Poolu

Thevar (PW.5) and two others went near the injured. The

accused persons threatened them that they would kill them

also. PW.2 swooned and fell on the ground. Thereafter, the

accused took to their heels.

PWs. 1 and 5 took the victim in a car to Naguneri

Government Hospital at about 8.30 a.m. Dr. Andiappan

(PW.3) examined the victim and found nine injuries. He also

sent Ex.P-2 intimation to the Nanguneri Police Station. Head

Constable (PW.7) came and recorded statement from PW.1.

Ex.P-1 is the complaint and the same was registered against

the accused for the offences under Sections 341, 342 and 307

IPC. Ex.P-7 is the printed FIR. Doctor (PW.3) sent the victim

to the Tirunelveli Hospital for further treatment. He issued

Ex.P-3 wound certificate. Doctor (PW.4) took X-Ray and issued

Ex.P-4 X-Ray report and the X-Rays were marked as M.Os. 3

to 9.

4

Gnana Diraviyam (PW.8), the Inspector of Police, took up

further investigation and went to the scene and examined the

witnesses. He prepared Ex.P-5 observation mahazar and

Ex.P-8 rough sketch. He also recovered sample earth and

blood stained earth. Thereafter, he went to the hospital and

recorded the statement from PW.2. Since the PW.8 was

subsequently transferred, Periasamy (PW.9) another Inspector

of Police, took up further investigation.

3.After completion of investigation charge sheet was filed

and the accused persons faced trial as they denied the

accusations. Nine witnesses were examined to further the

prosecution version. Trial court found the evidence of

prosecution witnesses to be not cogent and credible and

accordingly directed acquittal. State preferred appeal against

acquittal. High Court found that the reasoning indicated by

the Trial Court to direct the acquittal cannot be maintained. It

is to be noted that the acquittal was directed by the Trial

Court, inter alia, on the following grounds:

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(i) Recording of Ex.P-1 statement given by PW.1 by

PW.7 is doubtful. According to PW.3 Doctor, the

injured was conscious, when he was admitted in

the hospital. PWs. 1 and 7 would state that the

complaint was given by PW.1 which was recorded

by PW.7, since PW.2 was unconscious. There is no

reason as to why PW.7 had to obtain Ex.P-1

complaint from PW.1, when PW.2 was conscious.

(ii) PW.1 could not have seen the occurrence. PW.5, an

independent eye witness, would state that PW.1

came to the scene only after the occurrence.

Therefore, the evidence of PW.1 is unreliable.

(iii) PW.6 stated in the court that he had also seen the

occurrence. According to PW.8, the investigating

officer, PW.6 was not the eye-witness and he did not

give any statement that he saw the occurrence.

Therefore, the evidence of PW.6 is unreliable.

(iv) PW.7 head constable recorded Ex.P-1 and the same

was written by him. But, in evidence, he would

state that he dictated to a constable and the said

constable had written the same. There is no

evidence to show that any constable accompanied

PW.7. Therefore PW.7 had not recorded Ex.P-1 at

the hospital.

(v) PW.5 an independent witness, would state that A1

and A2 alone were present and attacked PW.2. He

did not refer about A3. Therefore, A3 could not have

been present. Furthermore, A3 produced a

certificate alongwith his statement under Section

313 Cr.P.C. to show that during the relevant time,

he was working in the mill in which he was

employed.

6

(vi) Both in Ex.P-1 and in the evidence of PWs.1 and 2,

there is a reference about one Thangapandi stating

that he was also one of the eye-witnesses. The said

eye-witness was not examined. There is no reason

for his non-examination.

(vii) According to PWs.1 and 2, both A1 and A2 attacked

PW.2 indiscriminately. But according to PW.5, after

first cut, PW.2 ran to a distance of about 50 feet

and thereafter, the further cuts given by the

accused with ‘Aruval” fell on PW.2 victim. So, there

is a contradiction between the evidence of PWs.1

and 2 on the one side and the evidence of PW.5 on

the other side.

4.High Court found that the conclusions arrived at by the

Trial Court were not sustainable. After analyzing the evidence

of PWs. 1, 2 and 5 it was held that the accusations have been

established. Accordingly, the appellants were convicted for

the offence punishable under Section 307 IPC and each was

sentenced to undergo RI for four years and to pay a fine of

Rs.5,000/- with default stipulation.

5.In support of the appeal, learned counsel for the

appellant submitted that the Trial Court had rightly rejected

the prosecution version taking note of the fact that evidence of

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PWs 1, 2 and 5 are irreconcilable. It was also submitted that

the evidence of PWs. 1, 2 and 5 is contradictory to each other.

In any event, it was submitted that the injuries were on non-

vital parts and, therefore, Section 307 IPC has no application.

Learned counsel for the respondent, on the other hand,

supported the judgment of the High Court.

6.PW3- the doctor attached to the Naguneri Government

Hospital, Tenkasi examined PW 2 at about 8.15 a.m. on

3.10.1989. He issued the wound certificate ExP3. He found

the following injuries on him:

“i. A bleeding lacerated wound 10cm x 5 cm. x 4cm on

medical aspect of right forearm muscles and (NC)

exposed.

ii. A bleeding lacerated wound 3 cm x 1 cm x 1 cm in

middle right forearm.

iii. A lacerated bleeding wound in the palman aspect of

2 cm x 1 cm x 1 cm of right middle and index finger

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seen and lacerated wound on the tip of right ring

and little finger measuring 1 cm x 1 cm x 1 cm .

iv. An incised wound 3 cm x 2 cm x 1 cm in upper

aspect of right arm.

v. A bleeding lacerated wound in the left shoulder

outer to the lateral end of left collar bone 4 cm x 2

cm x 1 cm seen.

vi. A bleeding incised wound in the upper part of left

arm 3 cm x 1cm x ½ cm.

vii. A bleeding incised wound 15 cm x 6 cm x 4 cm left

side of back of chest just below left infrascapular

angle.

viii. A bleeding incised wound in the palman aspect of

left index middle and ring finger and thumb each

measured 6 cm x 2 cm x 1 cm fracture of middle

finger MCP joint.

ix. A bleeding lacerated wound in the lateral aspect of

left forearm 3 cm x 2 cm x 1 cm.

9

As per the wound certificate Ex.P3, injury No.3 and 9 is

grievous in nature and the other injuries are simple injuries.

7.So far as the evidence of PWs. 1, 2 and 5 is concerned, it

is clear that P.W.2 was indiscriminately attacked by Al and A2

with 'Aruval'. As a result of those injuries, the victim (P.W.2)

fell on the ground.

8.According to P.W.5, as soon as P.W.2 fell on the ground,

he became unconscious and thereafter, the accused persons

ran away from the scene. This occurrence took place at about

7.30 A.M. and the victim was taken to the hospital at about

8.15 A.M. P.W.3 Doctor stated that the victim was conscious

and the victim stated to him that the he was attacked by three

persons with 'Aruval'.

9.P.W. 3 Doctor further stated that he gave Ex.P-2

intimation to the police, when P.W. 2 was admitted in the

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hospital. On receipt of Ex.P-2, P.W.7 Head constable rushed

to Nanguneri Government hospital. At that time, P.W.1 was

present in the hospital and gave Ex. P-1 statement to P.W.7.

10.It is true that P.W.7 stated that he obtained Ex.P-1

complaint from P.W.1, when P.W.2 was unconscious. P.W.1

stated that when P.W.2 victim was taken to the hospital, he

was in unconscious state and after admitting the victim in the

hospital, P.W. 3 Doctor gave treatment to him. So, when

treatment was being given by P.W.3 Doctor, P.W.7 came and

at that time, he was informed by P.W. 1 that P.W. 2 was not in

a position to give statement, since he was unconscious.

11.Even assuming that P.W.2 was conscious at that time,

the nine serious injuries found on various parts of the body of

the victim would clearly show that he could not have been

able to give full details to P.W.7. Under those circumstances,

obtaining of Ex. P-1 complaint from P.W. 1 is quite proper.

11

12.Merely because P.W.2 was conscious at that time, it

cannot be said that the statement should not have been

recorded from P.W.1 and the same is doubtful. No law

prohibits the police officer from recording complaint relating to

the occurrence, that too, from an eye witness. The ground of

acquittal as recorded by trial Court is not at all a proper

ground.

13.Secondly, accordingly to the trial court, P.W. 1 could not

have been seen the occurrence.

14.This again is not the reasoning based on evidence.

According to both P.Ws. 1 and 2, they went to take bath in the

well one after another. P.W.5 stated that after hearing the cry

of P.W.2, P.W.1 and others came to the scene. This would not

mean that P.W.1 did not accompany P.W.2. As a matter of

fact, even according to P.W.5, P.Ws. 1 and 5 took the victim in

a taxi to Naguneri Hospital.

12

15. The occurrence took place in a day light at 7.30 A.M.

The house of accused and P.Ws. 1 & 2 are situated nearby

and the well also is situated just two furlongs away from the

village. Under those circumstances, it cannot be said that P.W.

1 could not have accompanied P.W.2 to take bath. Therefore,

this ground of acquittal was rightly held by the High Court to

be untenable.

16.We find that the analysis made by the High Court to set

aside the order does not suffer from any infirmity. Learned

counsel for the appellant submitted that an appeal against the

acquittal cannot be interfered by the Appellate Court except

for the compelling reasons.

17.The appellants have questioned the correctness of the

High Court’s judgment. According to them, the High Court

had not kept in view the parameters of appeal against

acquittal. It is submitted that even if two views are possible,

the view supporting the accused had to be accepted and since

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the trial Court had precisely done it and there was no reason

to interfere with the judgment of the trial Court.

18.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).

19.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

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

extenso:

“378. Appeal in case of acquittal :(1) Save as

otherwise provided in sub-section (2) and subject

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

2 [(a) the District Magistrate may, in any case,

direct the Public Prosecutor to present an Appeal

to the Court of Session from an order of acquittal

passed by a Magistrate in respect of a cognizable

and non-bailable offence;

(b) 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

an acquittal passed by any Court other than a

High Court [not being an order under clause (a)]

or an order of acquittal passed by the Court of

Session in revision.";].

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

case in which the offence has been investigated

by the Delhi Special Police Establishment

constituted under the Delhi Special Police

Establishment Act, 1946 (25 of 1946) or by any

other agency empowered to make investigation

into an offence under any Central Act other than

this Code, 3 [the Central Government may,

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

direct the Public Prosecutor to present an

Appeal--

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(a) to the Court of Session, from an order of

acquittal passed by a Magistrate in respect of a

cognizable and non-bailable offence;

(b) to the High Court from an original or appellate

order of an acquittal passed by any Court other

than a High Court [not being an order under

clause (a)] or an order of acquittal passed by the

Court of Session in revision].

(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).

16

20.Whereas Sections 379-380 cover special cases of

appeals, other sections lay down procedure to be followed by

appellate courts.

21.It may be stated that more or less similar provisions were

found in the Code of Criminal Procedure, 1898 (hereinafter

referred to as “the old Code”) which came up for consideration

before various High Courts, Judicial Committee of the Privy

Council as also before this Court. Since in the present 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.

22.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

17

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.

23.It cannot, however, be forgotten that in case of acquittal,

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

the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every

person should be presumed to be innocent unless he is proved to

be guilty by a competent court of law. Secondly, the accused

having secured an acquittal, the presumption of his innocence is

certainly not weakened but reinforced, reaffirmed and

strengthened by the trial court.

24.Though the above principles are well established, a

different note was struck in several decisions by various High

18

Courts and even by this Court. It is, therefore, appropriate if

we consider some of the leading decisions on the point.

25.The first important decision was rendered by the Judicial

Committee of the Privy Council in Sheo Swarup v. R. Emperor

(1934) 61 IA 398). In Sheo Swarup the accused were 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

19

formed an opinion of its weight and reliability different from

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

petition was presented to His Majesty in Council for leave to

appeal on the ground that conflicting views had been

expressed by the High Courts in different parts of India upon

the question whether in an appeal from an order of acquittal,

an appellate court had the power to interfere with the findings

of fact recorded by the trial Judge. Their Lordships thought it

fit to clarify the legal position and accordingly upon the

“humble advice of their Lordships”, leave was granted by His

Majesty. The case was, thereafter, argued. The Committee

considered the scheme and interpreting Section 417 of the

Code (old Code) observed that there was no indication in the

Code of any limitation or restriction on the High Court in

exercise of powers as an Appellate Tribunal. The Code also

made no distinction as regards powers of the High Court in

dealing with an appeal against acquittal and an appeal against

conviction. Though several authorities were cited revealing

different views by the High Courts dealing with an appeal from

an order of acquittal, the Committee did not think it proper to

20

discuss all the cases.

26.Lord Russel summed up the legal position thus:

“There is, in their opinion, no foundation for the

view, apparently supported by the judgments of

some courts in India, that the High Court has no

power or jurisdiction to reverse an order of

acquittal on a matter of fact, except in cases in

which the lower court has ‘obstinately

blundered’, or has ‘through incompetence,

stupidity or perversity’ reached such ‘distorted

conclusions as to produce a positive miscarriage

of justice’, or has in some other way so

conducted or misconducted itself as to produce a

glaring miscarriage of justice, or has been tricked

by the defence so as to produce a similar result.”

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

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

the High Court full power to review at large the

evidence upon which the order of acquittal was

founded, and to reach the conclusion that upon

that evidence the order of acquittal should be

reversed. No limitation should be placed upon

that power, unless it be found expressly stated in

the Code.”

21

27.The Committee, however, cautioned appellate courts and

stated: (IA p.404)

“But in exercising the power conferred by the

Code and before reaching its conclusions upon

fact, the High Court should and will always give

proper weight and consideration to such matters

as (1) the views of the trial Judge as to the

credibility of the witnesses; (2) the presumption

of innocence in favour of the accused, a

presumption certainly not weakened by the fact

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

right of the accused to the benefit of any doubt;

and (4) the slowness of an appellate court in

disturbing a finding of fact arrived at by a judge

who had the advantage of seeing the witnesses.

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

Court in its conduct of the appeal should and will

act in accordance with rules and principles well

known and recognised in the administration of

justice.”

(emphasis supplied)

28.In Nur Mohd. v. Emperor (AIR 1945 PC 151), the

Committee reiterated the above view in Sheo Swarup (Supra)

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

has full powers to review and to reverse acquittal.

22

29.So far as this Court is concerned, probably the first

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

(though the case was decided on 14-3-1950, it was reported

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

trial court. The Provincial Government preferred an appeal

which was allowed and the accused was convicted for offences

punishable under Sections 302 and 323 IPC. The High Court,

for convicting the accused, placed reliance on certain

eyewitnesses.

30.Upholding the decision of the High Court and following

the proposition of law in Sheo Swarup (supra), a six-Judge

Bench held as follows:

“6. It must be observed at the very outset that we

cannot support the view which has been expressed

in several cases that the High Court has no power

under Section 417, Criminal Procedure Code, to

reverse a judgment of acquittal, unless the

judgment is perverse or the subordinate court has

in some way or other misdirected itself so as to

produce a miscarriage of justice.”

(emphasis supplied)

23

31.In Surajpal Singh v. State (1952 SCR 193), a two-Judge

Bench observed that it was well established that in an appeal

under Section 417 of the (old) Code, the High Court had full

power to review the evidence upon which the order of acquittal

was founded. But it was equally well settled that the

presumption of innocence of the accused was further

reinforced by his acquittal by the trial court, and the findings

of the trial court which had the advantage of seeing the

witnesses and hearing their evidence could be reversed only

for very substantial and compelling reasons.

32.In Ajmer Singh v. State of Punjab (1953 SCR 418) the

accused was acquitted by the trial court but was convicted by

the High Court in an appeal against acquittal filed by the

State. The aggrieved accused approached this Court. It was

contended by him that there were “no compelling reasons” for

setting aside the order of acquittal and due and proper weight

had not been given by the High Court to the opinion of the

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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)

33. In Atley v. State of U.P. (AIR 1955 SC 807) this Court

said:

25

“In our opinion, it is not correct to say that

unless the appellate court in an appeal under

Section 417, Criminal Procedure Code came to

the conclusion that the judgment of acquittal

under appeal was perverse it could not set aside

that order.

It has been laid down by this Court that it is

open to the High Court on an appeal against an

order of acquittal to review the entire evidence

and to come to its own conclusion, of course,

keeping in view the well-established rule that the

presumption of innocence of the accused is not

weakened but strengthened by the judgment of

acquittal passed by the trial court which had the

advantage of observing the demeanour of

witnesses whose evidence have been recorded in

its presence.

It is also well settled that the court of appeal has

as wide powers of appreciation of evidence in an

appeal against an order of acquittal as in the

case of an appeal against an order of conviction,

subject to the riders that the presumption of

innocence with which the accused person starts

in the trial court continues even up to the

appellate stage and that the appellate court

should attach due weight to the opinion of the

trial court which recorded the order of acquittal.

If the appellate court reviews the evidence,

keeping those principles in mind, and comes to a

contrary conclusion, the judgment cannot be

said to have been vitiated.”

(emphasis supplied)

26

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

1285) the accused was prosecuted under Sections 302 and

447 IPC. He was acquitted by the trial court but convicted by

the High Court. Dealing with the power of the High Court

against an order of acquittal, Bose, J. speaking for the

majority (2:1) stated: (AIR p. 220, para 1) “It is, in our opinion,

well settled that it is not enough for the High Court to take a

different view of the evidence; there must also be substantial

and compelling reasons for holding that the trial court was

wrong.”

(emphasis supplied)

35.In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a

three-Judge Bench considered almost all leading decisions on

the point and observed that there was no difficulty in applying

the principles laid down by the Privy Council and accepted by

the Supreme Court. The Court, however, noted that appellate

courts found considerable difficulty in understanding the

scope of the words “substantial and compelling reasons” used

in certain decisions. It was observed inter-alia as follows:

27

“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 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 as follows:

“9. The foregoing discussion yields the following

results: (1) an appellate court has full power to

review the evidence upon which the order of

acquittal is founded; (2) the principles laid down

in Sheo Swarup case afford a correct guide for the

appellate court’s approach to a case in disposing

of such an appeal; and (3) the different

phraseology used in the judgments of this Court,

such as, (i) ‘substantial and compelling reasons’,

(ii) ‘good and sufficiently cogent reasons’, and (iii)

‘strong reasons’ are not intended to curtail the

undoubted power of an appellate court in an

appeal against acquittal to review the entire

evidence and to come to its own conclusion; but

in doing so it should not only consider every

matter on record having a bearing on the

questions of fact and the reasons given by the

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.”

28

36.Again, in M.G. Agarwal v. State of Maharashtra (1963) 2

SCR 405, the point was raised before a Constitution Bench of

this Court. Taking note of earlier decisions, it was observed as

follows:

“17. In some of the earlier decisions of this Court,

however, in emphasising the importance of

adopting a cautious approach in dealing with

appeals against acquittals, it was observed that

the presumption of innocence is reinforced by the

order of acquittal and so, ‘the findings of the trial

court which had the advantage of seeing the

witnesses and hearing their evidence can be

reversed only for very substantial and compelling

reasons’: vide Surajpal Singh v. State (1952 SCR

193). Similarly in Ajmer Singh v. State of Punjab

(1953 SCR 418), it was observed that the

interference of the High Court in an appeal

against the order of acquittal would be justified

only if there are ‘very substantial and compelling

reasons to do so’. In some other decisions, it has

been stated that an order of acquittal can be

reversed only for ‘good and sufficiently cogent

reasons’ or for ‘strong reasons’. In appreciating

the effect of these observations, it must be

remembered that these observations were not

intended to lay down a rigid or inflexible rule

which should govern the decision of the High

Court in appeals against acquittals. They were

not intended, and should not be read to have

intended to introduce an additional condition in

clause (a) of Section 423(1) of the Code. All that

the said observations are intended to emphasize

is that the approach of the High Court in dealing

with an appeal against acquittal ought to be

29

cautious because as Lord Russell observed in

Sheo Swarup the presumption of innocence in

favour of the accused ‘is not certainly weakened

by the fact that he has been acquitted at his

trial’. Therefore, the test suggested by the

expression ‘substantial and compelling reasons’

should not be construed as a formula which has

to be rigidly applied in every case. That is the

effect of the recent decisions of this Court, for

instance, in Sanwat Singh v. State of Rajasthan

and Harbans Singh v. State of Punjab (1962 Supp

1 SCR 104) and so, it is not necessary that before

reversing a judgment of acquittal, the High Court

must necessarily characterise the findings

recorded therein as perverse.”

(emphasis supplied)

37.Yet in another leading decision in Shivaji Sahabrao

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

held that in India, there is no jurisdictional limitation on the

powers of appellate court. “In law there are no fetters on the

plenary power of the appellate court to review the whole

evidence on which the order of acquittal is founded and,

indeed, it has a duty to scrutinise the probative material de

novo, informed, however, by the weighty thought that the

rebuttable innocence attributed to the accused having been

converted into an acquittal the homage our jurisprudence

30

owes to individual liberty constrains the higher court not to

upset the holding without very convincing reasons and

comprehensive consideration.”

38.Putting emphasis on balance between importance of

individual liberty and evil of acquitting guilty persons, this

Court observed as follows:

“6. Even at this stage we may remind ourselves of

a necessary social perspective in criminal cases

which suffers from insufficient forensic

appreciation. The dangers of exaggerated

devotion to the rule of benefit of doubt at the

expense of social defence and to the soothing

sentiment that all acquittals are always good

regardless of justice to the victim and the

community, demand especial emphasis in the

contemporary context of escalating crime and

escape. The judicial instrument has a public

accountability. The cherished principles or

golden thread of proof beyond reasonable doubt

which runs thro’ the web of our law should not

be stretched morbidly to embrace every hunch,

hesitancy and degree of doubt. The excessive

solicitude reflected in the attitude that a

thousand guilty men may go but one innocent

martyr shall not suffer is a false dilemma. 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

31

light-heartedly, as a learned author (Glanville

Williams in Proof of Guilt) has saliently observed,

goes much beyond the simple fact that just one

guilty person has gone unpunished. If unmerited

acquittals become general, they tend to lead to a

cynical disregard of the law, and this in turn

leads to a public demand for harsher legal

presumptions against indicted ‘persons’ and

more severe punishment of those who are found

guilty. Thus, too frequent acquittals of the guilty

may lead to a ferocious penal law, eventually

eroding the judicial protection of the guiltless.

For all these reasons it is true to say, with

Viscount Simon, that ‘a miscarriage of justice

may arise from the acquittal of the guilty no less

than from the conviction of the innocent....’ In

short, our jurisprudential enthusiasm for

presumed innocence must be moderated by the

pragmatic need to make criminal justice potent and

realistic. A balance has to be struck between

chasing chance possibilities as good enough to set

the delinquent free and chopping the logic of

preponderant probability to punish marginal

innocents.”

(emphasis supplied)

39.In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the

Court was considering the power of the High Court against an

order of acquittal under Section 378 of the present Code. After

considering the relevant decisions on the point it was stated

as follows:

32

“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 Court in

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

120. In Sanwat Singh case this Court harked

back to the principles enunciated by the Privy

Council in Sheo Swarup v. R. Emperor and

reaffirmed those principles. After Sanwat Singh v.

State of Rajasthan this Court has consistently

recognised the right of the appellate court to

review the entire evidence and to come to its own

conclusion bearing in mind the considerations

mentioned by the Privy Council in Sheo Swarup

case. Occasionally phrases like ‘manifestly

illegal’, ‘grossly unjust’, have been used to

describe the orders of acquittal which warrant

interference. But, such expressions have been

used more as flourishes of language, to

emphasise the reluctance of the appellate court

to interfere with an order of acquittal than to

curtail the power of the appellate court to review

the entire evidence and to come to its own

conclusion. In some cases (Ramaphupala Reddy

v. State of A.P., (AIR 1971 SC 460) Bhim Singh

Rup Singh v. State of Maharashtra (AIR 1974 SC

286), it has been said that to the principles laid

down in Sanwat Singh case may be added the

further principle that ‘if two reasonable

conclusions can be reached on the basis of the

evidence on record, the appellate court should

33

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)

40.In Ramesh Babulal 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

34

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.”

41.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 guilty is no less than from the

conviction of an innocent. In a case where the

trial court has taken a view based upon

conjectures and hypothesis and not on the legal

evidence, a duty is cast upon the High Court to

reappreciate the evidence in acquittal appeal for

the purposes of ascertaining as to whether the

accused has committed any offence or not.

Probable view taken by the trial court which may

not be disturbed in the appeal is such a view

which is based upon legal and 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.”

35

42.In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the

trial court acquitted the accused but the High Court convicted

them. Negativing the contention of the appellants that the

High Court could not have disturbed the findings of fact of the

trial court even if that view was not correct, this Court

observed:

“7. We do not agree with the submissions of the

learned counsel for the appellants that under

Section 378 of the Code of Criminal Procedure

the High Court could not disturb the finding of

facts of the trial court even if it found that the

view taken by the trial court was not proper. On

the basis of the pronouncements of this Court,

the settled position of law regarding the powers of

the High Court in an appeal against an order of

acquittal is that the Court has full powers to

review the evidence upon which an order of

acquittal is based and generally it will not

interfere with the order of acquittal because by

passing an order of acquittal the presumption of

innocence in favour of the accused is reinforced.

The golden thread which runs through the web of

administration of justice in criminal case is that

if two views are possible on the evidence adduced

in the case, one pointing to the guilt of the

accused and the other to his innocence, the view

which is favourable to the accused should be

adopted. Such is not a jurisdiction limitation on

the appellate court but judge-made guidelines for

circumspection. The paramount consideration of

the court is to ensure that miscarriage of justice

is avoided. A miscarriage of justice which may

36

arise from the acquittal of the 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”.

43.In Harijana Thirupala v. Public Prosecutor, High Court of

A.P. (2002) 6 SCC 470, this Court said:

“12. Doubtless the High Court in appeal either

against an order of acquittal or conviction as a

court of first appeal has full power to review the

evidence to reach its own independent

conclusion. However, it will not interfere with an

order of acquittal lightly or merely because one

other view is possible, because with the passing

of an order of acquittal presumption of

innocence in favour of the accused gets

reinforced and strengthened. The High Court

would not be justified to interfere with order of

acquittal merely because it feels that sitting as a

trial court it would have proceeded to record a

conviction; a duty is cast on the High Court

while reversing an order of acquittal to examine

and discuss the reasons given by the trial court

to acquit the accused and then to dispel those

reasons. If the High Court fails to make such an

exercise the judgment will suffer from serious

infirmity.”

37

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

606, this Court observed:

“21. There is no embargo on the appellate court

reviewing the evidence upon which an order of

acquittal is based. Generally, the order of

acquittal shall not be interfered with because the

presumption of innocence of the accused is

further strengthened by acquittal. The golden

thread which runs through the web of

administration of justice in criminal cases is that

if two views are possible on the evidence adduced

in the case, one pointing to the guilt of the

accused and the other to his innocence, the view

which is favourable to the accused should be

adopted. The paramount consideration of the

court is to ensure that miscarriage of justice is

prevented. A miscarriage of justice which may

arise from acquittal of the guilty is no less than

from the conviction of an innocent. In a case

where admissible evidence is ignored, a duty is

cast upon the appellate court to reappreciate the

evidence in a case where the accused has been

acquitted, for the purpose of ascertaining as to

whether any of the accused committed any

offence or not”.

45.Again in Kallu v. State of M.P. (2006) 10 SCC 313, this

Court stated:

“8. While deciding an appeal against acquittal,

the power of the appellate court is no less than

38

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)

46.From the above decisions, in Chandrappa and Ors. v.

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

principles regarding powers of the appellate court while

dealing with an appeal against an order of acquittal were

culled out:

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

reappreciate and reconsider the evidence upon which the

order of acquittal is founded.

39

(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 emphasise the reluctance of an appellate court

to interfere with acquittal than to curtail the power of the

court to review the evidence and to come to its own

conclusion.

(4) An appellate court, however, must bear in mind

that in case of acquittal, there is double presumption in

favour of the accused. Firstly, the presumption of innocence

is available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed

40

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.

47.A person has, no doubt, a profound right not to be

convicted of an offence which is not established by the

evidential standard of proof beyond reasonable doubt. Though

this standard is a higher standard, there is, however, no

absolute standard. What degree of probability amounts to

“proof” is an exercise particular to each case. Referring to the

interdependence of evidence and the confirmation of one piece

of evidence by another, a learned author says [see “The

Mathematics of Proof II”: Glanville Williams, Criminal Law

Review, 1979, by Sweet and Maxwell, p.340 (342)]:

41

“The simple multiplication rule does not apply if

the separate pieces of evidence are dependent.

Two events are dependent when they tend to

occur together, and the evidence of such events

may also be said to be dependent. In a criminal

case, different pieces of evidence directed to

establishing that the defendant did the

prohibited act with the specified state of mind are

generally dependent. A junior may feel doubt

whether to credit an alleged confession, and

doubt whether to infer guilt from the fact that the

defendant fled from justice. But since it is

generally guilty rather than innocent people who

make confessions, and guilty rather than

innocent people who run away, the two doubts

are not to be multiplied together. The one piece of

evidence may confirm the other.”

48.Doubts would be called reasonable if they are free from a

zest for abstract speculation. Law cannot afford any favourite

other than truth. To constitute reasonable doubt, it must be

free from an overemotional response. Doubts must be actual

and substantial doubts as to the guilt of the accused persons

arising from the evidence, or from the lack of it, as opposed to

mere vague apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt, but a fair doubt

42

based upon reason and common sense. It must grow out of

the evidence in the case.

49.The concepts of probability, and the degrees of it, cannot

obviously be expressed in terms of units to be mathematically

enumerated as to how many of such units constitute proof

beyond reasonable doubt. There is an unmistakable subjective

element in the evaluation of the degrees of probability and the

quantum of proof. Forensic probability must, in the last

analysis, rest on a robust common sense and, ultimately, on

the trained intuitions of the Judge. While the protection given

by the criminal process to the accused persons is not to be

eroded, at the same time, uninformed legitimization of

trivialities would make a mockery of administration of criminal

justice. This position was illuminatingly stated by

Venkatachaliah, J. (as His Lordship then was) in State of U.P.

v. Krishna Gopal (1988 (4) SCC 302).

43

50.The above position was highlighted in Krishnan and Anr.

v. State represented by Inspector of Police (2003 (7) SCC 56) and

in Criminal Appeal No. 572 of 2001 entitled Valson & Anr. v.

State of Kerala (decided on 01

st

August, 2008).

51.When the factual position is analysed in the background

of the conclusions arrived at by the High Court, the inevitable

conclusion is that the High Court’s judgment is correct. The

appeal is dismissed. The appellants who are directed to be

released on bail by order dated 10.12.2001, shall surrender to

custody forthwith to serve the remainder of sentence.

……………………………….……J.

(Dr. ARIJIT PASAYAT)

……………………………….……J.

(Dr. MUKUNDAKAM SHARMA)

New Delhi:

September 30, 2008

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