REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 305 OF 2001
Satya Narain Yadav ...Appellant
Versus
Gajanand and Anr. ...Respondents
(With Criminal Appeal No. 999 of 2001)
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. These two appeals are directed against the judgment of a
Division Bench of the Rajasthan High Court directing acquittal
of respondent Gajanand. One appeal has been filed by the
informant while the other has been filed by the State. The trial
Court i.e. learned Additional Sessions Judge, No.2, Bundi,
Rajasthan, had convicted Gajanand for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short
the `IPC') and sentenced to undergo rigorous imprisonment for
life and to pay a fine of Rs.2,000/- with default stipulation.
Co-accused Mahavir was, however, acquitted.
2. Background facts in a nutshell are as follows:
Kana (PW-13) lodged a First Information Report (Ext.P-2)
that while he and his brother Devi Lal (hereinafter referred to
as `deceased') were working in the field, respondent No.1-
Gajanand and Mahavir objected to it and caused injury to
him. It was stated that Gajanand was having an axe in his
hand and he caused injuries to Devi Lal on his head. Earlier, a
case under Section 307 IPC was registered but on the death of
Devi Lal charge under Section 302 IPC was added. After
completion of investigation, challans were submitted against
Gajanand and Mahavir.
3. As appears from the first information report the
informant had stated that while they were harvesting the
2
wheat at the agricultural land in the morning two cow boys
were grazing their goats. When loss was caused to the crops,
Devi Lal asked them not to do so. They insisted that goats
would be grazed and their names were Gajanand and
Mahavir. When Devi Lal further asked them not to do so,
Gajanand gave a blow of axe on the left side of his head and
the deceased fell down. Thereafter, Mahavir assaulted with
fists and the handle of the axe. Thereafter both of them fled
away.
4. Charge sheet under Section 302 as well as under Section
302 read with Section 149 was filed separately against
accused persons. The accused persons pleaded innocence.
Sixteen witnesses were examined to further the prosecution
version. Kana (PW-13) was stated to be an eye-witness. The
Trial Court found Gajanand guilty of offence punishable under
Section 302 IPC. Mahavir, as noted above, was acquitted.
Present respondent preferred an appeal before the High Court
which by the impugned judgment set aside the conviction.
3
5. The accused had taken the stand during trial that when
Mahavir was trying to drive out the goat which entered into
the field of Devi Lal, he was given beatings by the deceased
and two lathi blows were inflicted on him. When Gajanand
came to his rescue, he was also addressed in contemptuous
manner and was given two lathi blows.
6. It was stated that by exercising the right of private
defence, two blows were given by Gajanand and, therefore, the
accused person cannot be convicted. The High Court has
accepted this stand of the accused and held that the right of
private defence is available.
7. In support of the appeal filed by the State and the
informant it is submitted that the trial Court has erroneously
held that the accused were exercising the right of private
defence.
8. Learned counsel for the accused-Gajanand submitted
that when injury was caused by lathi not only on Mahavir but
4
also to Gajanand-respondent, it cannot be said that they were
not exercising the right of private defence. In any event,
according to him, if parameters of appeal against acquittal are
kept in view, no interference is called for.
9. Only question which needs to be considered is the
alleged exercise of right of private defence. Section 96, IPC
provides that nothing is an offence which is done in the
exercise of the right of private defence. The Section does not
define the expression `right of private defence'. It merely
indicates that nothing is an offence which is done in the
exercise of such right. Whether in a particular set of
circumstances, a person legitimately acted in the exercise of
the right of private defence is a question of fact to be
determined on the facts and circumstances of each case. No
test in the abstract for determining such a question can be
laid down. In determining this question of fact, the Court
must consider all the surrounding circumstances. It is not
necessary for the accused to plead in so many words that he
acted in self-defence. If the circumstances show that the right
5
of private defence was legitimately exercised, it is open to the
Court to consider such a plea. In a given case the Court can
consider it even if the accused has not taken it, if the same is
available to be considered from the material on record. Under
Section 105 of the Indian Evidence Act, 1872 (in short `the
Evidence Act'), the burden of proof is on the accused, who sets
up the plea of self-defence, and, in the absence of proof, it is
not possible for the Court to presume the truth of the plea of
self-defence. The Court shall presume the absence of such
circumstances. It is for the accused to place necessary
material on record either by himself adducing positive
evidence or by eliciting necessary facts from the witnesses
examined for the prosecution. An accused taking the plea of
the right of private defence is not necessarily required to call
evidence; he can establish his plea by reference to
circumstances transpiring from the prosecution evidence
itself. The question in such a case would be a question of
assessing the true effect of the prosecution evidence, and not
a question of the accused discharging any burden. Where the
right of private defence is pleaded, the defence must be a
6
reasonable and probable version satisfying the Court that the
harm caused by the accused was necessary for either warding
off the attack or for forestalling the further reasonable
apprehension from the side of the accused. The burden of
establishing the plea of self-defence is on the accused and the
burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material
on record. (See Munshi Ram and Ors. v. Delhi Administration
(AIR 1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975
SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC
2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC
577). Sections 100 to 101 define the extent of the right of
private defence of body. If a person has a right of private
defence of body under Section 97, that right extends under
Section 100 to causing death if there is reasonable
apprehension that death or grievous hurt would be the
consequence of the assault. The oft quoted observation of this
Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as
follows:
7
"It is true that the burden on an accused
person to establish the plea of self-defence is
not as onerous as the one which lies on the
prosecution and that, while the prosecution is
required to prove its case beyond reasonable
doubt, the accused need not establish the
plea to the hilt and may discharge his onus by
establishing a mere preponderance of
probabilities either by laying basis for that
plea in the cross-examination of the
prosecution witnesses or by adducing defence
evidence."
10. The accused need not prove the existence of the right of
private defence beyond reasonable doubt. It is enough for him
to show as in a civil case that the preponderance of
probabilities is in favour of his plea.
11. A plea of right of private defence cannot be based on
surmises and speculation. While considering whether the right
of private defence is available to an accused, it is not relevant
whether he may have a chance to inflict severe and mortal
injury on the aggressor. In order to find whether the right of
private defence is available to an accused, the entire incident
must be examined with care and viewed in its proper setting.
8
Section 97 deals with the subject matter of right of private
defence. The plea of right comprises the body or property (i) of
the person exercising the right; or (ii) of any other person; and
the right may be exercised in the case of any offence against
the body, and in the case of offences of theft, robbery, mischief
or criminal trespass, and attempts at such offences in relation
to property. Section 99 lays down the limits of the right of
private defence. Sections 96 and 98 give a right of private
defence against certain offences and acts. The right given
under Sections 96 to 98 and 100 to 106 is controlled by
Section 99. To claim a right of private defence extending to
voluntary causing of death, the accused must show that there
were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he
had a right of private defence which extended to causing of
death. Sections 100 and 101, IPC define the limit and extent
of right of private defence.
9
12. Sections 102 and 105, IPC deal with commencement and
continuance of the right of private defence of body and
property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an
attempt, or threat, to commit the offence, although the offence
may not have been committed but not until there is that
reasonable apprehension. The right lasts so long as the
reasonable apprehension of the danger to the body continues.
In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was
observed that as soon as the cause for reasonable
apprehension disappears and the threat has either been
destroyed or has been put to route, there can be no occasion
to exercise the right of private defence.
13. In order to find whether right of private defence is
available or not, the injuries received by the accused, the
imminence of threat to his safety, the injuries caused by the
accused and the circumstances whether the accused had time
to have recourse to public authorities are all relevant factors
to be considered. Similar view was expressed by this Court in
10
Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan
Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja
Sekharan v. State represented by Inspector of Police, T.N.
(2002 (8) SCC 354).
14. As noted in Butta Singh v. The State of Punjab (AIR 1991
SC 1316), a person who is apprehending death or bodily
injury cannot weigh in golden scales in the spur of moment
and in the heat of circumstances, the number of injuries
required to disarm the assailants who were armed with
weapons. In moments of excitement and disturbed mental
equilibrium it is often difficult to expect the parties to preserve
composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where
assault is imminent by use of force, it would be lawful to repel
the force in self-defence and the right of private-defence
commences, as soon as the threat becomes so imminent.
Such situations have to be pragmatically viewed and not with
high-powered spectacles or microscopes to detect slight or
even marginal overstepping. Due weightage has to be given
11
to, and hyper technical approach has to be avoided in
considering what happens on the spur of the moment on the
spot and keeping in view normal human reaction and
conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the
guise of self-preservation, what really has been done is to
assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of right of
private-defence can legitimately be negatived. The Court
dealing with the plea has to weigh the material to conclude
whether the plea is acceptable. It is essentially, as noted
above, a finding of fact.
15. The right of self-defence is a very valuable right, serving a
social purpose and should not be construed narrowly. (See
Vidhya Singh v. State of M.P. (AIR 1971 SC 1857). Situations
have to be judged from the subjective point of view of the
accused concerned in the surrounding excitement and
confusion of the moment, confronted with a situation of peril
and not by any microscopic and pedantic scrutiny. In
12
adjudging the question as to whether more force than was
necessary was used in the prevailing circumstances on the
spot it would be inappropriate, as held by this Court, to adopt
tests by detached objectivity which would be so natural in a
Court room, or that which would seem absolutely necessary to
a perfectly cool bystander. The person facing a reasonable
apprehension of threat to himself cannot be expected to
modulate his defence step by step with any arithmetical
exactitude of only that much which is required in the thinking
of a man in ordinary times or under normal circumstances.
16. In the illuminating words of Russel (Russel on Crime,
11th Edition Volume I at page 49):
"....a man is justified in resisting by force
anyone who manifestly intends and
endeavours by violence or surprise to commit
a known felony against either his person,
habitation or property. In these cases, he is
not obliged to retreat, and may not merely
resist the attack where he stands but may
indeed pursue his adversary until the danger
is ended and if in a conflict between them he
happens to kill his attacker, such killing is
justifiable."
13
17. The right of private defence is essentially a defensive
right circumscribed by the governing statute i.e. the IPC,
available only when the circumstances clearly justify it. It
should not be allowed to be pleaded or availed as a pretext for
a vindictive, aggressive or retributive purpose of offence. It is
a right of defence, not of retribution, expected to repel
unlawful aggression and not as retaliatory measure. While
providing for exercise of the right, care has been taken in IPC
not to provide and has not devised a mechanism whereby an
attack may be a pretence for killing. A right to defend does not
include a right to launch an offensive, particularly when the
need to defend no longer survived.
18. The above position was highlighted in V. Subramani and
Anr. vs. State of Tamil Nadu (2005 (10) SCC 358) and Genda
Singh and Ors. v. State of U.P. (Criminal Appeal arising out of
SLP (Crl.) No.1029/07 disposed of on July 9, 2008).
14
19. It also would be necessary and 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
15
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).
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 acquittal.
When such an appeal is filed, the High Court has full power to
reappreciate, review and reconsider the evidence at large, the
17
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 Courts and
even by this Court. It is, therefore, appropriate if we consider
some of the leading decisions on the point.
18
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 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
19
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.
26. Lord Russel summed up the legal position thus:
20
"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."
27. His Lordship, then proceeded to observe: (IA p.404)
"Sections 417, 418 and 423 of the Code give to
the High Court full power to review at large the
evidence upon which the order of acquittal was
founded, 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."
28. 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
21
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)
29. 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.
30. 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
22
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.
31. 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)
32. In Surajpal Singh v. State (1952 SCR 193), a two-Judge
Bench observed that it was well established that in an appeal
under Section 417 of the (old) Code, the High Court had full
power to review the evidence upon which the order of acquittal
was founded. But it was equally well settled that the
23
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.
33. In Ajmer Singh v. State of Punjab (1953 SCR 418) the
accused was acquitted by the trial court but was convicted by
the High Court in an appeal against acquittal filed by the State.
The aggrieved accused approached this Court. It was 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".
24
34. Upholding the contention, this Court said:
"We think this criticism is well founded. After an
order of acquittal has been made the
presumption of innocence is further reinforced by
that order, and that being so, the trial court's
decision can be reversed not on the ground that
the accused had failed to explain the
circumstances appearing against him but only
for very substantial and compelling reasons."
(emphasis supplied)
35. 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
25
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)
36. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR
1285) the accused was prosecuted under Sections 302 and 447
IPC. He was acquitted by the trial court but convicted by the
High Court. Dealing with the power of the High Court against an
order of acquittal, Bose, J. speaking for the majority (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
26
evidence; there must also be substantial and compelling reasons
for holding that the trial court was wrong."
(emphasis supplied)
37. 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:
27
"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."
38. 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
28
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
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
29
must necessarily characterise the findings
recorded therein as perverse."
(emphasis supplied)
39. Yet in another leading decision in Shivaji Sahabrao Bobade
v. State of Maharashtra (1973 (2) SCC 793) this Court 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."
40. Putting emphasis on balance between importance of
individual liberty and evil of acquitting guilty persons, this Court
observed as follows:
30
"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
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
31
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)
41. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the
Court was considering the power of the High Court against an
order of acquittal under Section 378 of the present Code. After
considering the relevant decisions on the point it was stated as
follows:
"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
32
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
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
33
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)
42. 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."
43. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57,
referring to earlier decisions, the Court stated:
"7. The paramount consideration of the court
should be to avoid miscarriage of justice. A
34
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."
44. 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
35
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
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".
45. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.
(2002) 6 SCC 470, this Court said:
"12. Doubtless the High Court in appeal either
against an order of acquittal or conviction as a
court of first appeal 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
36
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."
46. 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
37
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".
47. 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)
48. From the above decisions, in Chandrappa and Ors. v.
State of Karnataka (2007 (4) SCC 415), the following general
38
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.
(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
39
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
to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court should
not disturb the finding of acquittal recorded by the trial
court.
49. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt. Though
40
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)]:
"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."
50. 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
based upon reason and common sense. It must grow out of
the evidence in the case.
51. The concepts of probability, and the degrees of it, 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
42
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).
52. The above position was highlighted in Krishnan and Anr.
v. State represented by Inspector of Police (2003 (7) SCC 56).
53. Considering the background facts we are of the view that
the High Court has rightly held that Gajanand was exercising
the right of private defence. Therefore, there is no merit in
these appeals which are dismissed accordingly.
.........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
August 1 , 2008
43
