IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.155 OF 2006
Ghurey Lal ... Appellant
Versus
State of U.P. ... Respondent
JUDGMENT
Dalveer Bhandari, J.
1. This appeal is directed against the judgment of the High
Court of Allahabad dated 11th November, 2005 passed in
Criminal Appeal No. 365 of 1981.
2. This is a murder case in which the trial court acquitted
the accused. The High Court reversed the trial court's
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decision, finding the accused guilty. In doing so, the appellate
court failed to give proper weight to the views of the trial court
as to credibility of witnesses, thereby ignoring the standards
by which the appellate courts consider appeals against
acquittals.
3. We have endeavoured to set out the guidelines for the
appellate courts in dealing with appeals against acquittal. An
overriding theme emanates from the law on appeals against
acquittals. The appellate court is given wide powers to review
the evidence to come to its own conclusions. But this power
must be exercised with great care and caution. In order to
ensure that the innocents are not punished, the appellate
court should attach due weight to the lower court's
because the presumption of innocence is further strengthened
by the acquittal. The appellate court should, therefore,
reverse an acquittal only when it has "very substantial and
compelling reasons."
4. In giving our reasons for reversing the appellate court's
judgment and restoring that of the trial court, we provide a
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brief review of the facts, the reasoning of the trial and High
Court as well as the standards by which appeals against
acquittals are reviewed according to settled principles of
criminal jurisprudence in our country.
5. Before turning to the facts that were before the trial
court, we note that there is an interesting coincidence in this
case. The names of both the accused and the deceased are
Ghurey Lal. Therefore, to avoid confusion, we have referred to
them as "accused" and "deceased."
6. Brief facts, according to prosecution, which are
necessary to dispose of this appeal are recapitulated as
under:-
It appears that at the heart of this matter lies a property
dispute. The accused testified in favour of his great-grand
daughter, Ram Devi. This testimony went against the
deceased, creating enmity between the parties.
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7. On 14.3.1979, the deceased, Shiv Charan P.W.1, Brij Raj
Singh P.W.2, Yad Ram P.W.4, Nathi Lal (not examined) and
Bishambhar (not examined) had taken the customary Gur
(Jaggery) during the Holi festival.
8. On their way home, they happened to pass by the home
of the accused. The accused was standing just outside his
home and was holding a shot gun. The accused began to
verbally abuse the deceased. Thereafter, the accused fired one
single shot from his gun, killing the deceased with a bullet
and causing injuries to Brij Raj Singh P.W. 2 with pellets.
Hearing the gun shot, some people quickly assembled at the
scene. The accused fled to his room, which he locked from
inside. The uncle of the deceased, Shiv Charan, lodged the
FIR that very evening, the 14th March, 1979 at 6.15 p.m., at
the Barhan Police Station in the District of Agra.
9. The accused provided his own version of the event.
According to the statement of the accused under section 313
of the Code of Criminal Procedure, he went to the place of
Kanchan Singh where Gur (Jaggery) was being distributed.
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One Bal Mukand told the accused to leave the Gur
distribution ceremony, as the deceased, Brij Raj Singh P.W. 2,
Yad Ram P.W.4, Nathi Lal and Bishambhar had collected
pharsa, lathis and kattas declaring that they will deal with
him (accused) when he comes there. On hearing this, the
accused returned to his home and grabbed his gun. The
deceased and others then arrived at his home, brandishing
weapons. The deceased carried a pharsa, Nathi Lal had a
katta, Brij Raj Singh a knife and Yad Ram and Bishambhar
possessed lathis. To threaten and check them, the accused
aimed his gun at them. This was to no avail. The deceased
and others struck at the accused, hitting his gun. Nathi Lal
fired his katta, causing pellet injuries to Brij Raj Singh P.W.2.
A scuffle ensued in which the deceased's group tried to snatch
away his gun. In the scuffle, the gun was accidentally fired,
killing the deceased. The accused sustained pharsa and lathi
blows on the butt and barrel of the gun. Fearing for his life,
the accused went to his room and locked the door from inside.
10. Brij Raj Singh P.W. 2 was sent to the Government
Hospital, Barhan for medical examination. Dr. Govind Prasad
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P.W.3 found the following injuries on the person of Brij Raj
Singh, P.W. 2:
1. Round lacerated wound 0.3 cm x 0.3 cm on
right side back 10 cms away from mid line 9
cms below border of scapula. Margins burnt
and inverted, and tattooing present in an area
of 5 cms. No pellets palpable. Bleeding
present.
2. Lacerated wound of exit 1.5 cm x 0.5 cm on
right side back 0.8 cm away and lateral from
injury no. 1. Skin burnt and tattooing present
in the area of 5 cm x 5 cms. Merging of the
wound inverted. No pellets palpable.
11. The Doctor opined that the injuries were caused by a
firearm. He advised that x-rays be taken and that the injuries
be kept in observation. In his opinion, the injuries were
caused by a gun shot and were of fresh duration. In his
opinion, the injuries could have been caused around 4 p.m.
The doctor sent the memo Ex. Ka-4 on the same day,
informing the case of Medico legal nature to the Barhan Police
Station.
12. The autopsy on the deceased was conducted by Dr. Ram
Kumar Gupta, P.W.5, Medical Officer, SNM Hospital,
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Firozabad, District Agra. It revealed the following ante-mortem
injuries on the deceased:
1. Gun shot wound of entry 2.5 cm x 2.5 cm
x through and through on right side neck
2 cm lateral to midline of neck front
aspect.
2. Gun shot wound of exit 5 cm x 4 cm x
through and through on right side back
of neck 5 cm below right ear
corresponding to injury no. 1 with
margins averted.
The Doctor opined that the cause of death was due to shock
and hemorrhage as a result of ante-mortem injury.
13. The prosecution examined Shiv Charan P.W.1, Brij Raj
Singh P.W.2 and Yad Ram P.W.4 as eye witnesses of the
occurrence. Dr. Govind Prasad P.W.3, Medical Officer In-
charge, who had medically examined Brij Raj Singh, proved
the injury report Ext. Ka 3. Dr. Ram Kumar Gupta P.W. 5,
who had conducted autopsy on the dead body of the deceased,
was also examined. On internal examination, he found semi
digested food material in the small intestine and there was
faecal matter present in the large intestines. He prepared the
post-mortem report Ex. Ka-5. In his opinion, the death of the
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deceased had taken place around 4 p.m. on 14.3.79 on
account of the said injuries and shock.
14. The accused was charged with killing the deceased under
section 302 of the Indian Penal Code (For short, IPC) and with
causing simple injuries to the injured under section 323 IPC.
He was also charged with attempting to murder Brij Raj under
section 307 IPC. The accused appellant denied the charges,
pleaded not guilty and asked to be tried.
15. The crucial question which arose for consideration was
whether the injuries caused to Brij Raj Singh P.W.2 could
have been caused by the same shot that killed the deceased.
If that was possible, the prosecution version became probable.
But if the shot that killed the deceased and the shot that
caused injuries to Brij Raj Singh were from different weapons,
then the defence version was more probable. Shri B. Rai,
Ballistic Expert, Forensic Science Laboratory, U.P. was called
as court witness No.1. He was asked to explain the nature of
the 12 bore cartridges and give an opinion, for which he
wanted time to carry out experiments in the laboratory. The
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gun was given to him and he performed a test in his
laboratory in the light of the statements of the eye-witnesses,
medical report and site-plan. He submitted his report, Ex. C-
Ka.1, wherein he clearly opined that injuries Nos. 1 and 2 of
the deceased were possible by the gun Ex.3 of the accused
and injuries Nos.1 and 2 of the injured Brij Raj Singh were
possible by another fire. By "fire", it is clear from the record
that the Ballistic Expert was referring to a "firearm".
16. Ultimately, we must answer the following question:
Whether the prosecution story of a single shot causing injury
to two persons, that is bullet injury to deceased and pellet
injury to Brij Raj Singh, with the accused as the aggressor,
stands sufficiently proved beyond reasonable doubt?
17. In order to decide whether a single shot was fired or in
fact two different shots were fired, we must carefully examine
the versions of the prosecution and the defence and the report
of the Ballistic Expert. According to the trial court, the
medical evidence coupled with the Ballistic Expert report
revealed the existence of two fires from two weapons and as
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such was inconsistent with the prosecution story. The trial
court further provided that it is difficult to separate falsehood
from the truth, as some material aspects of the occurrence
appeared to have been deliberately withheld. "One has to
separate the chaff from the grain and it is difficult to lay hand
upon what part of the prosecution evidence is true and what
part is untrue". According to the accused, the trial court had
taken a reasonable and possible view of the entire evidence on
record.
18. The post-mortem report Ex. Ka-5, photo lash Ex. Ka-7
and the statement of Dr. Ram Kumar Gupta P.W.5 indicate
that the wound of entry was on the right side of the neck 2
cm. lateral middle line on front aspect. The exit wound was
on the right side back of neck 5 cm. below the right ear. This
means that the bullet had entered from the front side of the
neck from a distance of 2 cm. lateral to middle line, and it had
come out from the back of the neck at a place 5 cm. below the
right ear. In this way, the trial court reasoned that the barrel
of the gun, when discharging, was slanting vertical. The
mouth of the barrel was upward and its butt downward. The
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barrel and the butt were not horizontal to the ground at that
time.
19. The trial court observed that injury no. 1 (wound of
entry) on Brij Raj Singh P.W.2 was on the right side of his
back 10 cm. away from the mid line, 9 cms. below the lower
border of scapula. Injury no. 2 (wound of exit) was on the
right side of his back 8 cm. away and lateral from injury no.1.
This means that the exit wound was by the side of the entry
wound at a distance of 8 cm.
20. The dictionary meaning of `lateral' is "by the side" and
this means that the two injuries caused by pellets to Brij Raj
Singh P.W.2 were horizontal and not vertical. The trial court
opined that the single shot could not have caused vertical
injury to one person and horizontal injury to another. It found
it doubtful and not sufficiently proved that the same shot
could have injured Brij Raj Singh and killed the deceased.
21. This conclusion is further fortified by the report of the
Ballistic Expert Sri B. Rai court witness No.1. He has given a
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definite opinion after making actual experiments by firing
shots. This was done from the distance at which the
occurrence was said to have taken place. The eye-witnesses
had testified to this distance. The Ballistic Expert opined that
the injuries to Brij Raj Singh P.W.2 were from a different shot
from the one that killed the deceased.
22. The relevant part of the evidence of the Ballistic Expert
reads as under:
"2. Question- Whether bullet and Chharras
both be used in 12 bore gun or not?
Ans.- 12 bore gun have no bullet. It has small
chharas, big chharas or one single ball shot with
diameter about 0645."
23. The Ballistic Expert after studying the post-mortem report
observed as under:
"Studying the Post Mortem report No. 51/79 of
deceased Ghurey Lal and injury report of Brijraj
Singh dated 14.3.79, statement of doctor and
witnesses and site plan and keeping the result of
above experiments in mind, I reached in conclusion
that injury No. 1 and 2 possible to sustain to
deceased Ghurey Lal by this gun from the distance
of 10 feet and injury No. 1 and 2 of injured Brij Raj
Singh seems to sustain by some other shot."
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24. The Ballistic Expert categorically stated that in cartridges
of standard 12 bore shot guns, bullets from other rifles cannot
be used with small and big chharas (pellets). Therefore, the
trial court concluded that both the injuries were not possible
by a single firearm.
25. Leading experts of forensic science, particularly ballistic
experts, do not indicate that from a single cartridge both
bullets and pellets can be fired. Professor Apurba Nandy in
his book "Principles of Forensic Medicine", first published in
1995 and reprinted in 2001, discussed cartridges. Professor
Nandy mentioned that in some cases, instead of multiple
pellets, a single shot or metallic ball, usually made of lead, is
used. We note that the discussion regarding cartridges
exclusively mentions pellets. No mention of bullets and pellets
in cartridges is found in the numerous volumes of scholarly
literature that we have consulted. Relevant discussion reads
as under: p. 241
"The Cartridges (the ammunitions)-
The cartridge of a shotgun and the cartridge
of a rifled weapon are essentially different in their
makes.
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The cartridge of a shot gun - (Fig. 10.69)
The cartridge of a shotgun has the following
parts and contents-
1. The cartridge case - The longer anterior
part of the cartridge case is made of card board.
The posterior part and the posterior surface is
made of brass. The margin of the breach end of
the cartridge case is rimmed, so that, the cartridge
can be properly placed inside the chamber and
with pressure on the rim the empty cartridge case
can be easily ejected out of the chamber. The
anterior margin of the cartridge case is twisted
inward to keep the pellets and other materials
inside the case compact. The anterior part of the
cartridge case is made of cardboard, for which,
with production of gas inside the cartridge case it
can slightly expand so that, the twisted grip by the
anterior margin will be released and the pellets
can come out of the case. The posterior metallic
part keeps the shape of the breach end of the
cartridge intact. It helps to maintain the right
position of the cartridge in the chamber, so that,
the percussion pin of the hammer strikes the
percussion cap rightly at the breach surface of the
cartridge. At the central part at the breach end
inside the cartridge case is the percussion cap.
2. The percussion cap - It contains primer
or priming mixture and there are some vents or
openings on the wall of the percussion cap. When
the posterior surface of the percussion cap is
struck by the percussion pin, the priming mixture
which consists of a mixture either of mercury
fulminate, pot, pot, chlorate and antimony
sulphide or of antimony sulphide with lead
styphnate, lead peroxide, barium nitrate or
tetracene, gets ignited due to the pressure and
friction and fire comes out through the vents or
openings on the wall of the percussion cap.
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3. Contents inside the cartridge case.
Surrounding the percussion cap is the gun powder
or the propellant charge which cannot ignite by
pressure or friction and which on being ignited
does not produce flame but produces huge
amount of gas. Usually the gunpowder of the
shotguns contains charcoal, pot, nitrate and
sulphur. This combination of the gunpowder is
known as black powder, as it produce much
smoke. Now-a-days semi smokeless gun powder
is in use in shot guns which is a combination of
80% of black powder and 20% of smokeless
powder. Smokeless powder is ordinarily used in
the cartridges of rifles (nitrocellulose or a
combination of nitrocellulose and nitroglycerine).
The black powder produces 200 - 300 ml. of gas
per grain. In front of the gunpowder, inside the
cartridge case, there is a thin cardboard disc. In
front of the cardboard, disc is placed the wad. The
wad is made of soft substance like, felt, cork,
straw or rug. In front of the wad, there is another
card board disc. In front of this disc, the pellets
are placed. The pellets are spherical projectiles
used in shot guns. Their size may be variable,
according to the need and make. One ounce of
pellets may consist of 6 to 2,600 of them. In front
of the pellets there is another cardboard disc on
the anterior margin of which the anterior margin
of the cartridge case is twisted. The functions of
the wad are to give compactness to the
gunpowder, to prevent admixture of propellant
charge and the pellets and prevent leakage of the
gas produced after the firing. Wad also cleans the
inner surface of the barrel after the pellets pass
out through the barrel. To facilitate this cleaning,
some greasy material is soaked in the wad. In
between the propellant charge and the wad there
is a cardboard disc so that the greasy substance in
the wad will not be soaked by the propellant
charge and become useless. In between the wad
and the pellets there is a disc which in one hand
prevents impregnation of the pellets in the soft
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wad and on the other, prevents leakage of the
greasy substance from the wad in the pellets
which would otherwise become adhesive to each
other loosing their dispersion capacity. The
anterior - most disc, placed in front of the pellets,
give compactness to the pellets and the whole
content of the cartridge case.
Shots of different sizes are suitable for
different purposes. Accordingly "Buck shots" or
"Bird shots" have different sized shots or pellets
for hunting wild birds or other prey.
In some cases instead of multiple pellets a
single hot or metallic ball, usually made up of
lead, is used. "Rifled slugs" are single shot
projectiles for shot guns with prominent parallel
grooves on the surface."
26. In this book, the assessment of the direction of firing
from the margin of the wound of entrance has also been given,
which reads thus: p. 257
"Assessment of the direction of firing from the
margin of the wound of entrance -
(i) (a) In case of shotgun injury, the
pattern of dispersion of the pellets
give the direction of the firing. The
pellets disperse over wider area as it
travels more. Hence firing is
suspected to have been from the
side opposite to the side of wider
dispersion of the pellets. ......"
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27. "Firearms in Criminal Investigation and Trials" was
written by a distinguished professor Dr. B.R. Sharma. He has
written in some detail about 12 bore guns. This book also
defines Pellet Pattern which reads thus: p.204
"Pellet Pattern
The area covered (pellet spread) by the pellets
fired from a shotgun is proportional to the
distance between the muzzle of the firearm and
the target. Greater the range, greater is the area
covered by the pellets. The spread of the pellets is
affected mainly by the length of the barrel of the
firearm and its muzzle characteristics (whether it
is choked or not). The condition of the
ammunition also affects the results. If
experiments are performed with the same firearm
and ammunition of the same make and batch, the
test patterns provide fairly accurate estimates of
the range.
Generally, the whole charge enters the body
en masse up to a range of about two metres in a
factory-made 12-bore shotgun. It forms a rat-hole
of about two to six centimetres in diameter. The
rat-hole is surrounded by individual holes when
the range of fire is about two to seven metres..."
28. The trial court stated that in the FIR itself it is mentioned
that the injuries to Brij Raj Singh were by pellets and that of
the deceased by a bullet. The Ballistic Expert has stated that
the cartridge containing pellets cannot contain a bullet.
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Accordingly, the trial court reasoned that two weapons were
used.
29. The Ballistic Expert is a disinterested, independent
witness who has technical knowledge and experience. It
follows that the trial judge was fully justified in placing
reliance on his report.
30. The trial court also observed that removing the body of
the deceased from the place of occurrence creates doubt that
the prosecution was planning to substitute another story for
the real facts. As such, the possibility that the deceased and
his group were the aggressors is not ruled out. It is possible
that pharsa and lathi blows had made the marks that were
found on the gun. The gun may have snatched all of a
sudden, causing it to fire upon the deceased and Brij Raj.
Under the circumstances of the case, the use of another
weapon, which had caused injuries to Brij Raj Singh P.W.2, is
also not ruled out.
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31. The trial court further observed that the substratum of
the prosecution story about the injuries to Brij Raj Singh is
not established beyond reasonable doubt and the story of
shooting the deceased by the same shot fired by the accused
is not separable from other doubtful evidence of eye-
witnesses. The circumstances show that the possibility of
aggression on the part of the complainant side is not ruled
out, then the benefit of doubt for killing the deceased by the
accused would also go to the accused.
32. The trial court also found force in the plea of right of
private defence as set up by the accused. The trial court
mentioned that there is force in this argument where the
circumstances of the case show that two fire arms were used
in the occurrence. The accused was all alone in his house at
that time. The availability of a second weapon is possible only
when the complainant side had brought it to the scene. This
circumstance supports the defence case, that the
complainants' side was the aggressor and they had come
armed with weapons to the scene. It follows that the accused
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would apprehend grievous hurt and danger to his life.
Accordingly, the right of self defence was open to him.
33. In the concluding paragraph of the judgment, the trial
court observed that when neither the prosecution nor the
defence version is complete, then it is obvious that both the
parties are withholding some information from the court. The
burden of proving the charge to the hilt lies upon the
prosecution. It has failed to discharge its burden. Thus, the
benefit has to go to the accused. According to the trial court,
the accused could not be convicted for the charges framed
against him. He was entitled to get the benefit of doubt and,
consequently, the accused had to be acquitted of the charges
under sections 302, 307 and 323 IPC.
34. The State, aggrieved by the trial court's judgment,
preferred an appeal before the High Court.
35. The High Court in appeal re-appreciated the entire
evidence and came to the conclusion that the trial court's
judgment was perverse and unsustainable. It therefore set
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aside the trial court judgment and convicted the accused
under section 302 IPC for the murder of the deceased and
under section 324 IPC for injuring Brij Raj Singh and
sentenced him to life imprisonment and for six months R.I.
respectively.
36. Against the impugned judgment of the High Court, the
accused appellant has preferred appeal to this court. We have
been called upon to decide whether the trial court judgment
was perverse and the High Court was justified in setting aside
the same or whether the impugned judgment is unsustainable
and against the settled legal position?
37. We deem it appropriate to deal with the main reasons by
which the trial court was compelled to pass the order of
acquittal and the main reasons of the High Court in reversing
the judgment of the trial court.
MAIN REASONS FOR ACQUITTAL BY THE TRIAL COURT:
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38. The trial court acquitted the accused for the following
reasons:
1. The prosecution story of single shot injury to
two persons one standing horizontally and the
other vertically stands totally discredited by
the medical and the evidence of Ballistic
Expert.
2. According to the FIR, the deceased received a
spherical ball (ball shot) bullet injury and Brij
Raj Singh P.W.2 received pellet injuries. The
accused's gun had a cartridge that could only
contain pellets. The Ballistic Expert has
clearly stated that a cartridge containing
pellets cannot contain a bullet. As such, it
appears that two weapons were used.
3. Dr. Ram Kumar Gupta, P.W.5 who conducted
the post-mortem of the deceased, clearly stated
that the deceased received injuries from a
bullet whereas Dr. Govind Prasad Bakara who
had examined Brijraj Singh P.W.2 clearly
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stated that both injuries were caused by a
pellet.
Therefore, according to medical evidence
coupled with the evidence of the Ballistic
Expert, two firearms must have been used.
This version is quite inconsistent with the
prosecution story.
4. The injuries received by Brij Raj Singh P.W.2
were from the back side and the injury
received by the deceased was from the front
side and this shows that two weapons may
have been used.
5. Removal of the body of the deceased from the
place of occurrence also created doubt with
regard to the veracity of the prosecution
version.
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6. The possibility that the deceased and the
complainant's side were aggressors and had
gone there and caused pharsa and lathi blows
on the accused cannot be ruled out because of
the marks on the gun Ex.3. That the said gun
was fired in snatching all of a sudden, injuring
the deceased also cannot be ruled out from the
circumstances of the case.
7. The trial court did not discard the defence
version of right of private defence as pleaded
by the accused.
8. The trial court observed that it is difficult to
separate falsehood from the truth, where some
material aspects of the occurrence seem to
have been deliberately withheld. It is a well-
established principle of criminal jurisprudence
that when two possible and plausible
explanations co-exist, the explanation
favourable to the accused should be adopted.
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MAIN REASONS FOR REVERSAL OF ACQUITTAL ORDER:
39. The High Court gave the following reasons for setting
aside the acquittal:
1. A perusal of the post-mortem report goes
to show that autopsy conducted on the
dead body of the deceased revealed ante-
mortem gunshot wound of entry 2.5 cm x
through and through on right side neck 2
cm lateral to midline of neck front aspect
having corresponding wound of exit 5 cm
x 4 cm on right side back of neck 5 cm
below right ear. Therefore, this injury
was almost horizontal.
2. Medical examination of injured Brij Raj
Singh revealed a round lacerated wound
of entry 0.3 cm x 0.5 cm on right side
back 10 cm away from midline and 9 cm
below lower border of scapula having
wound of exit 1.5 cm x 0.5 cm x 0.5 on
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right side back 0.8 cm away and lateral
from injury no. 1. Thus, this injury was
also almost horizontal.
3. The observation made by the trial judge
that firearm injury caused to the
deceased was vertical and to that of Brij
Raj Singh horizontal is wholly fallacious.
4. A layman does not understand the
distinction between a cartridge
containing pellets and the bullet. In
common parlance, particularly in villages
when a person sustains injuries by gun
shot, it is said that he has received `goli'
injury. Ghurey Lal fired at his uncle with
his gun causing him Goli (bullet) injury
and Brij Raj Singh also received pellet
(chhara) injury which goes to show that
injuries received by them were caused by
two different weapons. There is hardly
27
any difference between bullet and pellet
for a layman. From 12 bore gun
cartridge is fired and 12 bore cartridge
always contain pellets though size of
pellets may be different.
5. A perusal of the post-mortem reports goes
to show that autopsy conducted on the
dead body of the deceased revealed ante-
mortem gun shot wound of entry 2.5 cms.
through and through on right side neck 2
cm lateral to midline of neck front aspect
having corresponding wound of exit 5 cm
x 4cm on right side back of neck 5 cm
below right ear. Therefore, this injury
was almost horizontal.
6. The medical examination of injured Brij
Raj Singh revealed a round lacerated
wound of entry 0.3 cm x 0.5 cm on right
side back 10 cm away from midline and 9
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cm below lower border of scapula having
wound of exit 1.5 cm x 0.5 cm x 0.5 cm
on right side back 0.8 cm away and
lateral from injury no.1. Thus, this injury
was also almost horizontal.
7. The learned trial judge had noted the
evidence of B. Rai, Ballistic Expert, C.W.1
that both the injuries would have been
caused by two shots. While B. Rai,
Ballistic Expert, C.W.1 had given the said
opinion, he had also stated in his cross-
examination by the prosecution that if
the assailant fired from place `C' and the
person receiving pellet injury standing at
place `B' would have turned around, on
dispersal of pellets he could have
received the pellet injuries if deceased
and injured both would have stood in the
same line of firing.
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OUR CONCLUSIONS:
40. We disagree with the High Court. Admittedly, the
deceased died of a bullet injury whereas Brij Raj Singh, P.W. 2
received pellet injuries. It is well settled that a cartridge
cannot contain pellet and bullet shots together. Therefore, the
injuries on deceased and injured P.W. 2 clearly establish that
two shots were fired from two different fire arms.
41. The High Court also observed that the laymen, meaning
thereby the villagers, hardly know the difference between a
bullet and a pellet. This finding has no basis, particularly in
view of the statement of all the witnesses on record. Wherever
the witnesses wanted to use `bullet' they have clearly used
`Goli' or `bullet' and wherever they wanted to use `pellet' they
have clearly used the word `Chharra' which means pellets, so
to say that the witnesses did not understand the distinction
between the two is without any basis or foundation.
42. Mr. Sushil Kumar, learned senior advocate appearing for
the appellant, submitted that the judgment of the trial court
was based on the correct evaluation of the evidence and the
30
view taken by the trial court was definitely a reasonable and
plausible. Therefore, according to the settled legal position,
the High Court was not justified in interfering with the
judgment of the trial court.
43. Shri Ratnakar Das, learned senior advocate appearing
for the respondent State submitted that the impugned order of
the High Court is consistent with the settled legal position. He
submitted that once an order of acquittal is challenged then
the appellate court has all the powers which are exercised by
the trial court. We agree that the appellate court is fully
empowered to re-appreciate and re-evaluate the entire
evidence on record.
44. We deem it appropriate to deal with some of the
important cases which have been dealt with under the 1898
Code by the Privy Council and by this Court. We would like to
crystallize the legal position in the hope that the appellate
courts do not commit similar lapses upon dealing with future
judgments of acquittal.
31
45. The earliest case that dealt with the controversy in issue
was Sheo Swarup v. King Emperor AIR 1934 Privy Council
227. In this case, the ambit and scope of the powers of the
appellate court in dealing with an appeal against acquittal has
been aptly elucidated by the Privy Council. Lord Russell
writing the judgment has observed as under: (at p. 230):
"..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.."
The law succinctly crystallized in this case has been
consistently followed by this Court. On proper analysis of the
ratio and findings of this case, it is revealed that the findings
of the trial court are based on the fundamental principles of
the criminal jurisprudence. Presumption of innocence in
favour of the accused further gets reinforced and strengthened
by the acquittal of the trial court. The appellate court
undoubtedly has wide powers of re-appreciating and re-
32
evaluating the entire evidence but it would be justified in
interfering with the judgment of acquittal only when the
judgment of the trial court is palpably wrong, totally ill-
founded or wholly misconceived, based on erroneous analysis
of evidence and non-existent material, demonstrably
unsustainable or perverse.
46. This Court again in the case of Surajpal Singh &
Others v. State, AIR 1952 SC 52, has spelt out the powers of
the High Court. The Court has also cautioned the Appellate
Courts to follow well established norms while dealing with
appeals from acquittal by the trial court. The Court observed
as under:
"It is well established that in an appeal under
S. 417 Criminal P.C., the High Court has full power
to review the evidence upon which the order of
acquittal was founded, but it is equally well-settled
that the presumption of innocence of the accused
was further reinforced by his acquittal by the trial
court, and the findings of the trial court which had
the advantage of seeing the witnesses and hearing
their evidence can be reversed only for very
substantial and compelling reasons."
33
47. This Court reiterated the principles and observed that
presumption of innocence of accused is reinforced by an order
of the acquittal. The appellate court could have interfered
only for very substantial and compelling reasons.
48. In Tulsiram Kanu v. The State, AIR 1954 SC 1, this
Court explicated that the appellate court would be justified in
reversing the acquittal only when very substantial question
and compelling reasons are present. In this case, the Court
used a different phrase to describe the approach of an
appellate court against an order of acquittal. There, the
Sessions Court expressed that there was clearly reasonable
doubt in respect of the guilt of the accused on the evidence
put before it. Kania, C.J., observed that it required good and
sufficiently cogent reasons to overcome such reasonable doubt
before the appellate court came to a different conclusion.
49. In the same year, this Court had an occasion to deal with
Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954
SC 637, wherein it said that the High Court had not kept the
rules and principles of administration of criminal justice
34
clearly before it and that therefore the judgment was vitiated
by non-advertence to and mis-appreciation of various material
facts transpiring in evidence. The High Court failed to give
due weight and consideration to the findings upon which the
trial court based its decision.
50. The same principle has been followed in Atley v. State
of U.P. AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the
Court said:
"It has been laid down by this Court that it is
open to the High Court on an appeal against an
order of acquittal to review the entire evidence and
to come to its own conclusion, of course, keeping in
view the well established rule that the presumption
of innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed
by the trial court which had the advantage of
observing the demeanour of witnesses whose
evidence have been recorded in its presence.
It is also well settled that the court of appeal
has as wide powers of appreciation of evidence in
an appeal against an order of acquittal as in the
case of an appeal against an order of conviction,
subject to the riders that the presumption of
innocence with which the accused person starts in
the trial court continues even up to the appellate
stage and that the appellate court should attach
35
due weight to the opinion of the trial court which
recorded the order of acquittal."
51. The question was again raised prominently in Aher Raja
Khima v. State of Saurashtra AIR 1956 SC 217. Bose, J.
expressing the majority view observed (at p.220):
"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; Ajmer Singh v. State of Punjab (AIR
1953 SC 76, at pp.77-78); and if the trial Court
takes a reasonable view of the facts of the case,
interference under S. 417 is not justifiable unless
there are really strong reasons for reversing that
view. Surajpal Singh v. State AIR 1952 SC 52 at
54."
52. In Balbir Singh v. State of Punjab AIR 1957 SC 216,
this Court again had an occasion to examine the same
proposition of law. The Court (at page 222) observed as
under:
"It is now well settled that though the High
Court has full power to review the evidence upon
which an order of acquittal is founded, it is equally
well settled that the presumption of innocence of
the accused person is further reinforced by his
acquittal by the trial Court and the views of the trial
Judge as to the credibility of the witnesses must be
given proper weight and consideration; and the
slowness of an appellate Court in disturbing a
finding of fact arrived at by a Judge who had the
36
advantage of seeing the witnesses must also be kept
in mind, and there must be substantial and
compelling reasons for the appellate Court to come
to a conclusion different from that of the trial
Judge."
53. A Constitution Bench of this Court in M.G. Agarwal v.
State of Maharashtra AIR 1963 SC 200, observed as under:
"There is no doubt that the power conferred
by clause (a) which deals with an appeal against an
order of acquittal is as wide as the power conferred
by clause (b) which deals with an appeal against an
order of conviction, and so, it is obvious that the
High Court's powers in dealing with criminal
appeals are equally wide whether the appeal in
question is one against acquittal or against
conviction. That is one aspect of the question. The
other aspect of the question centres round the
approach which the High Court adopts in dealing
with appeals against orders of acquittal. In dealing
with such appeals, the High Court naturally bears
in mind the presumption of innocence in favour of
an accused person and cannot lose sight of the fact
that the said presumption is strengthened by the
order of acquittal passed in his favour by the trial
Court and so, the fact that the accused person is
entitled for the benefit of a reasonable doubt will
always be present in the mind of the High Court
when it deals with the merits of the case. As an
appellate Court the High Court is generally slow in
disturbing the finding of fact recorded by the trial
Court, particularly when the said finding is based
on an appreciation of oral evidence because the trial
Court has the advantage of watching the
demeanour of the witnesses who have given
evidence. Thus, though the powers of the High
Court in dealing with an appeal against acquittal
37
are as wide as those which it has in dealing with an
appeal against conviction, in dealing with the
former class of appeals, its approach is governed by
the overriding consideration flowing from the
presumption of innocence. ........
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, and so, it is not necessary
that before reversing a judgment of acquittal, the
High Court must necessarily characterize the
findings recorded therein as perverse.
The question which the Supreme Court has to
ask itself, in appeals against conviction by the High
Court in such a case, is whether on the material
produced by the prosecution, the High Court was
justified in reaching the conclusion that the
prosecution case against the appellants had been
proved beyond a reasonable doubt, and that the
contrary view taken by the trial Court was
erroneous. In answering this question, the
Supreme Court would, no doubt, consider the
salient and broad features of the evidence in order
to appreciate the grievance made by the appellants
against the conclusions of the High Court."
54. In Noor Khan v. State of Rajasthan, AIR 1964 SC 286,
this Court relied on the principles of law enunciated by the
Privy Council in Sheo Swarup (supra) and observed thus:
"Sections 417, 418 and 423 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. But in
exercising the power conferred by the Code and
38
before reaching its conclusions upon fact, the High
Court should and will always give proper weight
and consideration to such matters as (1) the views
of the trial Judge as to the credibility of the
witnesses; (2) the presumption of innocence in
favour of the accused, a presumption 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."
55. In Khedu Mohton & Others v. State of Bihar, (1970) 2
SCC 450, this Court gave the appellate court broad guidelines
as to when it could properly disturb an acquittal. The Court
observed as under:
"3. It is true that the powers of the High Court in
considering the evidence on record in appeals under
Section 417, Cr. P.C. are as extensive as its powers
in appeals against convictions but that court at the
same time should bear in mind the presumption of-
innocence of accused persons which presumption is
not weakened by their acquittal. It must also bear
in mind the fact that the appellate judge had found
them not guilty. Unless the conclusions reached by
him are palpably wrong or based on erroneous view
of the law or that his decision is likely to result in
grave injustice, the High Court should be reluctant
to interfere with his conclusions. If two reasonable
conclusions can be reached on the basis of the
evidence on record then the view in support of the
acquittal of the accused should be preferred. The
fact that the High Court is inclined to take a
different view of the evidence on record is not
sufficient to interfere with the order of acquittal."
39
(emphasis supplied)
56. In Shivaji Sahabrao Bobade & Another v. State of
Maharashtra, (1973) 2 SCC 793, the Court observed thus:
"An appellant aggrieved by the overturning of
his acquittal deserves the final court's deeper
concern on fundamental principles of criminal
justice......
........ But we hasten to add even here that,
although the learned judges of the High Court
have not expressly stated so, they have been at
pains to dwell at length on all the points relied on
by the trial court as favourable to the prisoners for
the good reason that they wanted to be satisfied in
their conscience whether there was credible
testimony warranting, on a fair consideration, a
reversal of the acquittal registered by the court
below. 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, In our view the High Court's
judgment survives this exacting standard."
57. In Lekha Yadav v. State of Bihar (1973) 2 SCC 424,
the Court following the case of Sheo Swarup (supra) again
reiterated the legal position as under:
40
"The different phraseology used in the judgments of
this Court such as-
(a) substantial and compelling reasons:
(b) good and sufficiently cogent reasons;
(c) 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 but
should express the reasons in its judgment which
led it to hold that the acquittal was not justified."
58. In Khem Karan & Others v. State of U.P. & Another
AIR 1974 SC 1567, this Court observed:
"Neither mere possibilities nor remote possibilities
nor mere doubts which are not reasonable can,
without danger to the administration of justice, be
the foundation of the acquittal of an accused
person, if there is otherwise fairly credible
testimony."
59. In Bishan Singh & Others v. The State of Punjab
(1974) 3 SCC 288, Justice Khanna speaking for the Court
provided the legal position:
41
"22. It is well settled that the High Court in appeal
under Section 417 of the CrPC has full power to
review at large the evidence on which the order of
acquittal was founded and to reach the conclusion
that upon the evidence the order of acquittal should
be reversed. No limitation should be placed upon
that power unless is be found expressly stated be in
the Code, but in exercising the power conferred by
the Code and before reaching its conclusion upon
fact the High Court should 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;
& (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."
60. In Umedbhai Jadavbhai v. The State of Gujarat
(1978) 1 SCC 228, the Court observed thus:
"In an appeal against acquittal, the High Court
would not ordinarily interfere with the Trial Court's
conclusion unless there are compelling reasons to
do so inter alia on account of manifest errors of law
or of fact resulting in miscarriage of justice."
61. In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1
SCC 361, the Court observed thus:
"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
42
the evidence are possible, one must necessarily
concede the existence of a reasonable doubt. But,
fanciful and remote possibilities must be left out of
account. To entitle an accused person to the benefit
of a doubt arising from the possibility of a duality of
views, the possible view in favour of the accused
must be as nearly reasonably probable as that
against him. If the preponderance of probability is
all one way, a bare possibility of another view will
not entitle the accused to claim the benefit of any
doubt. It is, therefore, essential that any view of the
evidence in favour of the accused must be
reasonable even as any doubt, the benefit of which
an accused person may claim, must be reasonable.
"A reasonable doubt", it has been remarked, "does
not mean some light, airy, insubstantial doubt that
may flit through the minds of any of us about
almost anything at some time or other, it does not
mean a doubt begotten by sympathy out of
reluctance to convict; it means a real doubt, a
doubt founded upon reasons. [Salmond J. in his
charge to the jury in R.V. Fantle reported in
1959 Criminal Law Review 584.]"
{emphasis supplied}
62. In Tota Singh & Another v. State of Punjab (1987) 2
SCC 529, the Court reiterated the same principle in the
following words:
"This Court has repeatedly pointed out that
the mere fact that the appellate court is inclined
on a re-appreciation of the evidence to reach a
conclusion which is at variance with the one
recorded in the order of acquittal passed by the
court below will not constitute a valid and
sufficient ground for setting aside the acquittal.
The jurisdiction of the appellate court in dealing
with an appeal against an order of acquittal is
circumscribed by the limitation that no
interference is to be made with the order of
43
acquittal unless the approach made by the lower
court to the consideration of the evidence in the
case is vitiated by some manifest illegality or the
conclusion recorded by the court below is such
which could not have been possibly arrived at by
any court acting reasonably and judiciously and
is, therefore, liable to be characterised as perverse.
Where two views are possible on an appraisal of
the evidence adduced in the case and the court
below has taken a view which is a plausible one,
the appellate court cannot legally interfere with an
order of acquittal even if it is of the opinion that
the view taken by the court below on its
consideration of the evidence is erroneous."
(emphasis supplied)
63. In Ram Kumar v. State of Haryana 1995 Supp. (1)
SCC 248, this Court had another occasion to deal with a case
where the court dealt with the powers of the High Court in
appeal from acquittal. The Court observed as under:
".. the High Court should not have interfered
with the order of acquittal merely because another
view on an appraisal of the evidence on record was
possible. In this connection it may be pointed out
that the powers of the High Court in an appeal from
order of acquittal to reassess the evidence and
reach its own conclusions under Sections 378 and
379 (sic 386) CrPC are as extensive as in any appeal
against the order of conviction. But as a rule of
prudence, it is desirable that the High Court should
give proper weight and consideration to the view of
the trial court with regard to the credibility of the
witness, the presumption of innocence in favour of
the accused, the right of accused to the benefit of
any doubt and the slowness of appellate court in
justifying a finding of fact arrived at by a judge who
had the advantage of of seeing the witness. No
doubt it is settled law that if the main grounds on
which the Court below has based its order
acquitting the accused, are reasonable and
plausible, and the same cannot entirely and
44
effectively be dislodged or demolished, the High
Court should not disturb the order of acquittal. We
shall, therefore, examine the evidence and the
material on record to see whether the conclusions
recorded by the Trial Court in acquitting the
appellant are reasonable and plausible or the same
are vitiated by some manifest illegality or the
conclusion recorded by the Trial Court are such
which could not have been possibly arrived at by
any Court acting reasonably and judiciously which
may in other words be characterized as perverse."
64. This Court time and again has provided direction as to
when the High Courts should interfere with an acquittal. In
Madan Lal v. State of J&K, (1997) 7 SCC 677, the Court
observed as under:
"8. ........ that there must be "sufficient and
compelling reasons" or "good and sufficiently cogent
reasons" for the appellate court to alter an order of
acquittal to one of conviction........"
65. In Sambasivan & Others v. State of Kerala (1998) 5
SCC 412, while relying on the case of Ramesh Babulal Doshi
(Supra), the Court observed thus:
7. The principles with regard to the scope of
the powers of the appellate court in an appeal
against acquittal, are well settled. The powers of the
appellate court in an appeal against acquittal are no
less than in an appeal against conviction. But
where on the basis of evidence on record two views
are reasonably possible the appellate court cannot
substitute its view in the place of that of the trial
court. It is only when the approach of the trial court
45
in acquitting an accused is found to be clearly
erroneous in its consideration of evidence on record
and in deducing conclusions therefrom that the
appellate court can interfere with the order of
acquittal."
66. In Bhagwan Singh & Others v. State of M.P. (2002) 4
SCC 85, the Court repeated one of the fundamental principles
of criminal jurisprudence 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 Court
observed as under:-
"7. The golden thread which runs through
the web of administration of justice in criminal
case is that if two views are possible on the
evidence adduced in the case, one pointing to the
guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but a
Judge made guidelines for circumspection. The
paramount consideration of the court is to ensure
that miscarriage of justice is avoided."
67. In Harijana Thirupala & Others v. Public Prosecutor,
High Court of A.P., Hyderabad (2002) 6 SCC 470, this Court
again had an occasion to deal with the settled principles of law
46
restated by several decisions of this Court. Despite a number
of judgments, High Courts continue to fail to keep them in
mind before reaching a conclusion. The Court observed thus:
"10. The principles to be kept in mind in our
system of administration of criminal justice are
stated and restated in several decisions of this
Court. Yet, sometimes High Courts fail to keep them
in mind before reaching a conclusion as to the guilt
or otherwise of the accused in a given case. The
case on hand is one such case. Hence it is felt
necessary to remind about the well-settled
principles again. It is desirable and useful to
remind and keep in mind these principles in
deciding a case.
11. In our administration of criminal justice
an accused is presumed to be innocent unless such
a presumption is rebutted by the prosecution by
producing the evidence to show him to be guilty of
the offence with which he is charged. Further if two
views are possible on the evidence produced in the
case, one indicating to the guilt of the accused and
the other to his innocence, the view favourable to
the accused is to be accepted. In cases where the
court entertains reasonable doubt regarding the
guilt of the accused the benefit of such doubt
should go in favour of the accused. At the same
time, the court must not reject the evidence of the
prosecution taking it as false, untrustworthy or
unreliable on fanciful grounds or on the basis of
conjectures and surmises. The case of the
prosecution must be judged as a whole having
regard to the totality of the evidence. In
appreciating the evidence the approach of the court
must be integrated not truncated or isolated. In
other words, the impact of the evidence in totality
on the prosecution case or innocence of the accused
has to be kept in mind in coming to the conclusion
47
as to the guilt or otherwise of the accused. In
reaching a conclusion about the guilt of the
accused, the court has to appreciate, analyse and
assess the evidence placed before it by the yardstick
of probabilities, its intrinsic value and the animus
of witnesses. It must be added that ultimately and
finally the decision in every case depends upon the
facts of each case.
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 the 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."
(emphasis supplied)
68. In C. Antony v. K.G. Raghavan Nair, (2003) 1 SCC 1
had to reiterate the legal position in cases where there has
been acquittal by the trial courts. This Court observed thus:
"6. This Court in a number of cases has held
that though the appellate court has full power to
review the evidence upon which the order of
acquittal is founded, still while exercising such an
48
appellate power in a case of acquittal, the appellate
court, should not only consider every matter on
record having a bearing on the question of fact and
the reasons given by the courts below in support of
its order of acquittal, it must express its reasons in
the judgment which led it to hold that the acquittal
is not justified. In those line of cases this Court has
also held that the appellate court must also bear in
mind the fact that the trial court had the benefit of
seeing the witnesses in the witness box and the
presumption of innocence is not weakened by the
order of acquittal, and in such cases 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."
69. In State of Karnataka v. K. Gopalkrishna, (2005) 9
SCC 291, while dealing with an appeal against acquittal, the
Court observed:
"In such an appeal the Appellate Court does
not lightly disturb the findings of fact recorded by
the Court below. If on the basis of the same
evidence, two views are reasonably possible, and
the view favouring the accused is accepted by the
Court below, that is sufficient for upholding the
order of acquittal. However, if the Appellate Court
comes to the conclusion that the findings of the
Court below are wholly unreasonable or perverse
and not based on the evidence on record, or suffers
from serious illegality including ignorance or
misreading of evidence on record, the Appellate
Court will be justified in setting aside such an order
of acquittal."
49
70. In The State of Goa v. Sanjay Thakran, (2007) 3 SCC
755, this Court relied on the judgment in State of Rajasthan
v. Raja Ram (2003) 8 SCC 180 and observed as under:
"15. 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 principle to be
followed by appellate court considering the appeal
against the judgment of acquittal is to interfere
only when there are compelling and substantial
reasons for doing so. If the impugned judgment is
clearly unreasonable, it is a compelling reason for
interference."
The Court further held as follows:
"16. it is apparent that while exercising the powers
in appeal against the order of acquittal the court of
appeal would not ordinarily interfere with the order
of acquittal unless the approach of the lower court
is vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to
be characterized as perverse. Merely because two
views are possible, the court of appeal would not
take the view which would upset the judgment
delivered by the court below."
50
71. In Chandrappa & Others v. State of Karnataka
(2007) 4 SCC 415, this Court held:
"(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 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.
51
(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."
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in
appeals against acquittal under sections 378 and 386
of the Criminal Procedure Code, 1973. Its power of
reviewing evidence is wide and the appellate court can
reappreciate the entire evidence on record. It can
review the trial court's conclusion with respect to both
facts and law.
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was
before the trial court. The trial court's acquittal
bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given
to the trial court's decision. This is especially true
52
when a witness' credibility is at issue. 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 trial court was
wrong.
73. In light of the above, the High Court and other appellate
courts should follow the well settled principles crystallized by
number of judgments if it is going to overrule or otherwise
disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise
disturb the trial court's acquittal if it has "very
substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate
court would have "very substantial and compelling
reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when:
i) The trial court's conclusion with regard to the
facts is palpably wrong;
53
ii) The trial court's decision was based on an
erroneous view of law;
iii) The trial court's judgment is likely to result in
"grave miscarriage of justice";
iv) The entire approach of the trial court in
dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly
unjust and unreasonable;
vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declarations/
report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not
exhaustive.
2. The Appellate Court must always give proper weight
and consideration to the findings of the trial court.
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3. If two reasonable views can be reached - one that
leads to acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour of the
accused.
74. Had the well settled principles been followed by the High
Court, the accused would have been set free long ago.
Though the appellate court's power is wide and extensive, it
must be used with great care and caution.
75. We have considered the entire evidence and documents
on record and the reasoning given by the trial court for
acquitting the accused and also the reasoning of the High
Court for reversal of the judgment of acquittal. We have also
dealt with a number of cases decided by the Privy Council and
this Court since 1934. In our considered opinion, the trial
court carefully scrutinized the entire evidence and documents
on record and arrived at the correct conclusion. We are
clearly of the opinion that the reasoning given by the High
Court for overturning the judgment of the trial court is wholly
unsustainable and contrary to the settled principles of law
crystallized by a series of judgment.
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76. On marshalling the entire evidence and the documents
on record, the view taken by the trial court is certainly a
possible and plausible view. The settled legal position as
explained above is that if the trial court's view is possible and
plausible, the High Court should not substitute the same by
its own possible views. The difference in treatment of the case
by two courts below is particularly noticeable in the manner in
which they have dealt with the prosecution evidence. While
the trial court took great pain in discussing all important
material aspects and to record its opinion on every material
and relevant point, the learned Judges of the High Court have
reversed the judgment of the trial court without placing the
very substantial reasons given by it in support of its
conclusion. The trial court after marshalling the evidence on
record came to the conclusion that there were serious
infirmities in the prosecution's story. Following the settled
principles of law, it gave the benefit of doubt to the accused.
In the impugned judgment, the High Court totally ignored the
settled legal position and set aside the well reasoned judgment
of the trial court.
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77. The trial court categorically came to the finding that
when the substratum of the evidence of the prosecution
witnesses was false, then the prosecution case has to be
discarded. When the trial court finds so many serious
infirmities in the prosecution version, then the trial court was
virtually left with no choice but to give benefit of doubt to the
accused according to the settled principles of criminal
jurisprudence.
78. On careful analysis of the entire evidence on record, we
are of the view that the reasons given by the High Court for
reversing the judgment of acquittal is unsustainable and
contrary to settled principles of law. The trial court has the
advantage of watching the demeanour of the witnesses who
have given evidence, therefore, the appellate court should be
slow to interfere with the decisions of the trial court. An
acquittal by the trial court should not be interfered with
unless it is totally perverse or wholly unsustainable.
79. On consideration of the totality of the circumstances, the
appeal filed by the appellant is allowed and the impugned
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judgment passed by the High Court is set aside. The
appellant would be set at liberty forthwith unless required in
any other case.
...............................J.
(R. V. Raveendran)
..............................J.
(Dalveer Bhandari)
New Delhi;
July 30, 2008.
