Suraj Singh vs State Of U.P

the State of U.P. questioning the judgment of acquittal passed by

learned Additional Sessions Judge, Special Judge (E.C. Act),

Mainpuri in Sessions Trial No.169 of 1993. Two persons i.e. the

present appellant and his wife Smt. Kapoori Devi were tried for offence punishable under Section 302 read with Section 34 of

the Indian Penal Code, 1860 (in short the `IPC') for the murder of

one Jagat Singh (hereinafter referred to as the `deceased'). The

trial Court directed acquittal of the appellant primarily on the

ground that there was discrepancy between the ocular evidence

and the medical evidence, independent witnesses were not

examined. In appeal filed by the State, the High Court held that

while the acquittal of Smt. Kapoori Devi (A-2) was correct, the

same was not sustainable so far as the present appellant is

concerned.

2. Background facts in a nutshell are as follows:

The incident took place on 23.9.1992 at about 12.20 p.m. at

the house of the deceased Jagat Singh and the accused persons

situated in village Chhibkaria, P.S. Bhongaon, District Mainpuri.

The report was lodged on 23.9.1992 at 1.45 p.m. by the eye-

witness Jaivir Singh (PW-1-who was nephew of the deceased).

The accused are also close relatives of the deceased. Suraj Singh

is son of Ram Sahai Yadav who was real brother of father of the

2 deceased. Suraj Singh was a police constable and was posted at

Aligarh. He was in shadow duty of an Ex-M.L.A. On the day of

incident, he was going from his house to join his duty. The

deceased Jagat Singh asked him to go after constructing the

earth partition of the agricultural plot. Accused Suraj Singh

abused him. His wife Kapoori Devi exhorted him to go after

finishing him. Suraj Singh and his wife then climbed up their

roof. Suraj Singh fired two shots from his gun whereas his wife

Kapoori Devi fired three shots from a revolver which hit Jagat

Singh who died instantaneously. The incident was seen by Sant

Saran (PW.2) as also by Dafedar Singh, Gajraj Singh, Atar Sri-

wife of Jagat Singh and other villagers. Consequent upon the

registering of the case, investigation was taken up by S.S.I. S.K.

Dixit (PW.5.) The postmortem over the dead body of the deceased

was conducted by Dr. D.S.Rathore (PW.4) on 24.9.1992 at 1.45

P.M. The following ante-mortem injuries were found on his

person who aged about 50 years.

1. Lacerated wound 0.5 cm x 0.3 cm x muscle deep on front aspect of left ear pinna middle part.

3 2. Firearm wound 0.5 cm x 0.3 bone deep on right and front aspect of upper part of nose 1.00 cm below root of nose, underlying nasal bone fractured. Margins charred.

3. Lacerated wound 1.00 cm x 0.4 cm x muscle deep on outer and front aspect of right upper arm, 11.00 cm above the right elbow joint.

4. Two firearm wounds 0.5 cm x 0.3 cm x skin deep anterior outer aspect of right upper, arm, placed 3 cm apart, just above the right elbow.

Margins charred.

5. Firearm wound of entry 0.4 cm x 0.3 cm x muscle deep on front of neck 2.5 cm right to midline just above the clavicle. Margins inverted and charred.

6. Firearm wound of entry 0.3 cm. x 0.3 cm. x muscle deep on right side of neck 3.00 cm away from injury No.5 just 3.00 cm above the clavicle. Margins charred and inverted.

7. Multiple firearm wounds of entry 0.4 cm x 0.3 cm x chest cavity deep to 0.4 cm x 0.4 cm muscle deep in size in an area of 7.00 cm x 6.00 cm on front of chest midline on both sides in middle part of front chest. Margins charred and inverted.

8. Firearm wound of entry 0.4 cm x 0.4 cm x chest cavity deep on lower part front and outer aspect of right side of chest 11.00 cm away from right nipple, at 7 O'clock position. Margins inverted and charred.

4 On internal examination, two metallic pieces were recovered

from the soft tissues of the neck, two from left ventricle, one

pellet from right chest cavity and one from abdomen cavity. The

death had occurred due to shock and haemorrhage owing to

ante-mortem injuries.

Apart from the medical and formal evidence including that

of investigation, the prosecution relied upon the testimony of

Jaivir Singh (PW-1) and Sant Saran (PW-2) as eye-witnesses. The

defence was of denial.

Trial Court held that there were discrepancies and

accusations have not been established. An appeal was filed by

the State.

The High Court found that there was no discrepancy so far

as the medical evidence and the ocular evidence is concerned. It

was also held that non examination of other persons did not

adversely affect the credibility of the evidence tendered, and

when there is direct evidence of eye witnesses the alleged

5 inconsistency relating to distance from which the gunshots were

fired is of no consequence particularly when the prosecution

version relating to assault by guns and pistol substantially

tallied with the medical evidence. Accordingly, appellant was

found guilty of offence punishable under Section 302 IPC and

sentenced to undergo imprisonment for life.

3. In support of the appeal, learned counsel for the appellant

submitted that the High Court had not kept in view the

parameters of an appeal against acquittal. It is submitted that

when two views are possible on the basis of the evidence on

record and the one favourable to the accused is taken by the trial

Court, same should not be disturbed.

4. Learned counsel for the State on the other hand supported

the judgment and submitted that the conclusions of the trial

Court were erroneous both on law and facts and, therefore, the

High Court was justified in interfering with the order of the trial

Court.

6

5. 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.--(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

7 Court, or an order of acquittal passed by the Court of Session in revision.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 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).

8

6. Whereas Sections 379-380 cover special cases of appeals,

other sections lay down procedure to be followed by appellate

courts.

7. 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.

8. 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

9 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.

9. 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.

10. Though the above principles are well established, a different

note was struck in several decisions by various High Courts and

even by this Court. It is, therefore, appropriate if we consider

some of the leading decisions on the point.

10

11. 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 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

11 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 discuss all the cases.

12. Lord Russel summed up the legal position thus:

12

"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."

13. 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."

14. 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

13 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)

15. 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.

16. 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

14 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.

17. 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)

18. 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

15 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.

19. 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 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". 16

20. 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)

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

"In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the 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

17 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)

22. 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."

18 (emphasis supplied)

23. 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:

"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

19 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."

24. 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

20

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 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)

21

25. 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 owes to individual liberty constrains the

higher court not to upset the holding without very convincing

reasons and comprehensive consideration."

26. 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

22 expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted `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

23 the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

(emphasis supplied)

27. 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:

"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

24 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 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

25 reasonable."

(emphasis supplied)

28. 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 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."

29. 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

26 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."

30. 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

27 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 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".

31. 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

28 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."

32. 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".

29 whether any of the accused committed any offence or not".

33. 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 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)

34. 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: 30

(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 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

31 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

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.

35. 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

32 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)]:

"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."

36. 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

33 vague apprehensions. A reasonable doubt is not an imaginary,

trivial or a merely possible doubt, but a fair doubt based upon

reason and common sense. It must grow out of the evidence in

the case.

37. 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).

34

38. The above position was highlighted in Krishnan and Anr. v.

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

39. So far as discrepancy between ocular evidence and medical

evidence is concerned, this Court in Kamaljit Singh v. State of

Punjab (2003 (12) SCC 155) observed as under:

"It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat (1983 (2) SCC 174). The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal (1988 (4) SCC 302). When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference.

35 40. Coming to the plea that the medical evidence is at variance

with ocular evidence, it has to be noted that it would be

erroneous to accord undue primacy to the hypothetical answers

of medical witnesses to exclude the eyewitnesses' account which

had to be tested independently and not treated as the "variable"

keeping the medical evidence as the "constant".

41. It is trite that where the eyewitnesses' account is found

credible and trustworthy, medical opinion pointing to alternative

possibilities is not accepted as conclusive. Witnesses, as

Bentham said, are the eyes and ears of justice. Hence the

importance and primacy of the quality of the trial process.

Eyewitnesses' account would require a careful independent

assessment and evaluation for its credibility which should not be

adversely prejudged making any other evidence, including

medical evidence, as the sole touchstone for the test of such

credibility. The evidence must be tested for its inherent

consistency and the inherent probability of the story; consistency

with the account of other witnesses held to be creditworthy;

36 consistency with the undisputed facts, the "credit" of the

witnesses; their performance in the witness box; their power of

observation etc. Then the probative value of such evidence

becomes eligible to be put into the scales for a cumulative

evaluation.

42. In the instant case, the trial Court erroneously concluded

that the medical evidence was at variance with the ocular

evidence. The oral testimony is not at variance with the medical

evidence as rightly observed by the High Court.

43. This Court in Lila Ram (D) thr. Duli Chand v. State of

Haryana and Anr. (JT 1999 (6) SC 274) held that it was

immaterial whether one or two gunshots were fired. Such

contradiction does not travel to the root of the nature of the

offence. The discrepancy in ocular and medical evidence vis-a-

vis distance cannot affect the credibility of evidence. In State of

U.P. v. Suhar Singh (AIR 1987 SC 191) it was observed that

when there is direct evidence of eye witness available the

37 inconsistency relating to distance from which the gunshots were

fired is of no consequence when the prosecution evidence

pertaining to assault by guns and pistol substantially tallied with

the medical evidence. The present case, belongs to that category.

Additionally, there was no discrepancy pointed out in the

evidence of eye witnesses. Merely because PW-1 and PW-2 were

close relatives of the deceased, that cannot be a ground to affect

credibility of their evidence. Looked at from any angle there is no

merit in the appeal which is accordingly dismissed.

....... ..................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, July 24, 2008

38