State of Goa v. Pandurang Mohite

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 598-599 of 2002. From the final Judgment and Order dated 6/7.11.2001 of the High Court of Bombay Bench at Goa in Criminal Appeals No. 11 of 2000 & 14 of 2000. 1 [2008] 17 S.C.R. A Subhashyini for the Appellant. r K. Sarda Devi for the Respondent. .. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.

1Challenge in these appeals is to the judgment of a Division Bench of Bombay High Court at Goa directing acquittal of the respondent. The accused faced trial for offences punishable under Section 302, 392 and 201 of the Indian Penal Code, 1860 (in short the 'IPC'). The learned Additional Sessions Judge, Mapusa found the accu~ed guilty of offence punishable under Sections 302, 392 and 201 IPC and convicted him to undergo imprisqnment for life, seven years and one years with different fines with default stipulations.

2In appeals the High Court found. the evidence t~ be inadequate and directed acquittal.

3Prosecution version in a nutshell is as follows: Chandrakant Mahadeshwar and his son Shyam Mahadeshwar (hereinafter referred to as the ~deceased') had gone for the ann~al fair to sell sweets at the. village Zarme. On · 1.3.1998, in the morning they were returning home. At about 7.30A.M. when they reached at village Valpoi, Shyam told his father that he would stay behind and father should proceed ahead"to his house and that he would follow him after some time. So, Chandrakant left behind Shyam at Valpoi and went to his Village at Thana. Till 1.00 p.m. on that day Shyam did not return home. So he started searching for Shyam. Ultimately, o_n 2.3.1998, at about 8.30 a.m. he lodged report at the Valpoi Police Station that Shyam was missing.

On the basis of that report, the missing case No.6/98 was registered at the police station. y On 2.3.1998 itself when Chandrakant was at Valpoi, Ramjatan Vishwakarma (PW3) told him that he had taken ,H Shyam and the accused to Hedode Bridge on the previous day at about 7 .15 a.m, and he had left them there. Ramjatan then took Chandrakant to the house of the accused, but the accused was not there. The matter was also reported to the police. The police visited the house of the accused on 2.3.98 at about 11 a.m., but the accused was not there. On 2.3.1998, at about noon time, when Chandrakant returned home, he saw that the accused was at his home and accused told him that Shyam would be returning home by evening. Thereafter, the police came there. The accused was taken to the police station. There was one bicycle. It was seized c by the police. On 2.3.1998 itself, the brotner of the accused i.e. Baburao as well as brother-in-law of the accused i.e.

Jaidev Paryekar were also called at the police station and inquiries were made with them. A shirt worn by Baburao and a pant worn by Jaidev 0 Paryekar were seized by the police under a Panchanama. The accused was interrogated and he made a statement that he would point out the place where dead body of Shyam was lying. Then the police, panchas and the accused went by t police jeep to Hedode Bridge. From there, the accused took them in a jungle at distance of about one and half kilometre and pointed out to the dead body of the deceased. Since it was night time, Inspector Dessai who had taken the accused and the panchas to that place, could not prepare the panchanama of the dead body and therefore, he kept some policemen to keep "r - watch on the dead body and returned to the police station. On returning to the police station, inspector Dessai himself lodged F.1.R. at about 1.30 a.m. on 3.3.1998.

He gave all the details as to how the dead body was recovered and alleged that the accused had committed the offence. of murder of Shyam and had taken away cash and other valuables from the body of the deceased. So, crime was registered for the offences punishable under Sections 302, 392 and 201 of l.P.C. It was crime No.18/98. Inspector Dessai himself took up the investigation. In the morning of 3.3.1998, Inspector Dessai again went to the place in the jungle where dead body was lying.· He prepared panchanama of the place of the offence and from there he recovered a pair of chapples and a knife. He also prepared s inquest panchanama of the dead body. He found that there were some injuries on the person of the deceased· and there were also burn injuries. He sent the dead body for post mortem examination to Goa Medical College at Bambolim. " Dr. Silvano Dias Sapeco conducted post mortem examination on the dead body and gave his opinion that the cause of death was due to post mortem burns.

4On completion of investigation charge sheet was filed and the accused faced trial. There was no eye witness to the occurrence. Prosecution version rested on circumstantial evidence. The prosecution rested its version on the last seen theory contending that the accused and the deceased were last seen together. For that purpose it relied on the evidence of PWs 3 & 8. As noted above the trial court placed reliance on the' .. evidence of PWs 3 & 8 and directed conviction which in appeal was set aside by the High Court.

5Learned counsel for the appellant-State submitted that the High Court should not have discarded the evidence of PWs 3 & 8. According to PW 3 he had carried both the accused and the deceased on his motor cycle betw~en 7 to 7.15 AM. Thereafter the accused was seen alone between 9.15 to 9.30 AM. PW 8 saw the accused going near the place of occurrence between 9 AM to 9.30 AM and had carried him on his motor cycle. This, according to learned counsel for the appellant, was sufficient to fasten the guilt on the accused.

6Learned counsel for the respondent on the other hand supported the judgment of the High Court. It was submitted that keeping in view parameters relating to appeal against-judgment of acquittal, this appeal is sans merit. I

7It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Kamataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The c circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

8We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 sec 193, wherein it has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his G innocence .... ".

9In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the A following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly · established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a 7 chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain I conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the I guilt of the accused but should be inconsistent with his l innocence." 1

10In State of u:P. v. Ashok Kumar Srivastava, (1992 I Crl.LJ 1104), it was pointed out that greatcare must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the ·facts so established must be consistent only with the hypothesis of guilt. I

11Sir Alfred Wills in ·his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof y I i's always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be STATE Of GOAv. PANDURANG MOHITE [DR. ARIJIT PASAYAT; J.] addJced which the nature of the ca~e admits; (4) in order to justify. the Inference of guilt, the inculpatory facts must be incompatible-with the innocence of the accused and incapable of explanation, upon any oth~r reasonable hypothesis than that of his guilt, (5) if there be. any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

12There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to Circumstantial evidence laid down by the this Court as far back as in 1952:

13In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be· proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by ~he accused."

14A reference may be made to a later decision in Sharad Birdhichand Sarcia v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could A be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusioQ of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave ariy reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

15These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and Kusuma Ankama Rao v State of AP. (Criminal Appeal No.185/2005 disposed of on 7.7.2008)

16So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) sec 114] it was noted as follows: "22. The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomf!S impossible. It would be pifficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."

17In Ramreddy Rajeshkhanna Reddy v. State of AP. c [2006 (1 O) sec 172] it was noted as follows: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased Js found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"

18A similar view was.also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438] and Kusuma Ankama Rao's case (supra).

19It is interesting to note that PWs 3 & 8 claimed to have seen the accused at the same time and to have carried him in the motor cycle which itself is impossibility. Additionally neither PW 3 nor PW 8 claimed to have seen the other witness along with the accused at the relevant point of time. The High Court noticed that PW 3 Ramjathan stated that on 1.3.1998 he had taken the accused and the deceased to Hedode Bridge and he was available in the police station on 2.3.1998 at 11 PM. The High Court found it strange that his statement was not . 190 . A recorded on thatday. It rejected the stand of the leamed counsel for State that the crime was registered. at about 1.30 AM on 3.3.1998 and thereafter _the investigation started and therefore, statement of PW 3 was recorded afterwards. hi ordinary circumstances it could have been accepted as sufficient B explanation.

Strangely, the police claimed.to have seized the bicycle of the accused before registration of the crime and to have recorded his statement as an accused. According to the prosecution on the basis of the aforesaid statement seizure was 7 made. Not only that, th,e alleged memorandum of statement of c the accused was prepared on 2.3.1998 and thereafter as per the prosecution the accused took them to the j1:1ngle where dead body was lying and discovery panchnama was *-also '1"" prepared on 2.3.1998. The discovery panchnama is Exhibit 6/ A which was marked by PW 6. The signature of the accused D was obtained as an accused. In other words on 2.3.1998 police was treating the respondent as an accusec;t and had started investigation. That being so there wa~ no difficulty in recording the statement of PW 3 on 2.3.1998.

20It is proper to consider and clarify 1the legal position E regarding appeal and acquittal. 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 F 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 appea1s in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits · G 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(1) Save as otherwise provided in sub-section (2) and .··STATE OF GOA v. PANDURANG MOHITE [DR.

ARIJIT PASA VAT, J.] subject to the provisions of sub-sections (3) and (5),- (a) the District Magistrate may; 'in any case, direct the Public Prosecutor to present an Appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an Appeal to the High Court from an original or appellate order of an acquittal passed by any Court other thari a High Court [not being an order under clause (a)] or an order of acquittal passed by the c 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, subject to the provisions of subsection (3), also direct the Public Prosecutor to present an Appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; I (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (3) No Appeal to the High Court under sub-section (1) or G 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 [20018] 17 S.C.R. application made to it by the complainant ir,1 this behalf, grants special leave to appeal from the orde1r of acquittal, the complainant may present such an appe~.il to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acqu1ittal shall be entertained by the High Court after the expiry o~ six months, where the complainant is a public servant, anc1 sixty days ·1 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)."

21Whereas Sections-379-380 cover special ca1ses of appeals, other sections lay down procedure to be followed by 'r appellate courts.

22It 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.

23Bare reading of Section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against ,.-- acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.

24It cannot, ho,ver, 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 c is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

25Though 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.

26The 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 "'-y 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 I was presented to His Majesty in Council for leave to appeal A 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 finding$'!!Qf fact r~corded by the ·trial Judge. Their Lordships thought it'tit to _clarify the legal B position and accordi·ngly 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 . c restriction on the Higt{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 ·. ag~ilist acquittal and an appeal against conviction. Though several authorities v.1ere cited revealing different vi~ws by the High Courts dealing with an appeal from an order of acquittal, D . the Committee did not think it proper to discuss all the cases. 27'. Lord Russel summed up the legal position thus: "There is, in their opinion, no foundation for the view, appare·ntly 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 inwhi.ch the lower court has ·'obstinately blundered', or has 'through inq()rripetence; stupidity or perversity' reached such 'distorted conclu.sions as to produce a · positive miscarriag~ of justice', .or has in some o.ther way so cq:nducted or.,jtlis¢onducted itself as to produce a glaring miscarriage of justice, or has beenJricked by the defencescfas to produce-a·slmil~fr'result." · ·· · His Lordship, then pr6c~kded to obser\le: <I.A p.404) ''..Sections 417,.41~~~ndA23 of t6~ pdcie giJ~ .t6 the Higti ... Courtfull powertd:revlew atlarg~ the evitlenee upon which . the .order of .acquittaJwas·founded, and:':to~reach the conclus.lon that Upofr that evidence· the cirder of acquittal I should be reversed. No limitation should be placed upon . that power, unless it be found expressly stated in the Code." ..

28The Committee, however, cautioned appeUate courts and stated: ·(IA p.404). "But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the HighCourt t should and will· always/give proper weight and consideration to such matters as· ( 1) the views of the trial c Judge as to the credibility of t~e 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 D: a judge who had the advantage of seeing the witnesses .. To state this, however, is only to sa.y 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)

29In 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 .... lfull powers to review and to reverse acquittal.

30So far as this Court is concerned, probably the first· decision on the point was Prandas·v. State (AIR 1954 SC 36). (though the ·case was decided on 14-3-1950, it was reported only in 1954). In that case; the accused was acquitted by the trial court. The Provincial Government preferred an appeal · ·which was allowed and the accused was convicted for offences punishable under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain A eyewitnesses.

31Upholding 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)

32In Surajpa/ Singh-v. State (1952 S°CR 193), a two- Judge Bench observed that it was well established that in an appeal under Section 417 of the (old) Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.

33In 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 th~re were "no compelling reasons" for setting aside the order of acquittal and due and proper weight · had not been given by the High Court to the opinion of the trial court as regards the credibility of witnesses seen and examined. It was also commented that the High Court committed an error of law in observing that "when a strong 'prima facie' case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed". Upholding the contention, this Court said: "We think this criticism is well founded. After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being.so, the trial court's decision can be revers~d not on ~e ground that c the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons." (emphasis supplied)

34In Atley v. State of U.P. (AIR 1955 SC 807) this Court D said: "In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 41. 7, Criminal Procedure Code came to the conclusion that the judgment E 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 --- L 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 G observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal h~s 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 H· 198 .

SUPREME CQURT REPORTS 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 hav~ ~een vitiated." (emphasis supplied) , 35. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was prosecuted under Sections 302 and 447 IPC. He was acq4itted by the tri~I court but convicted by the High Court. Dealing with the power of the High Court · 0 against an order of acquittal, Bose, J. speaking for the majority . (2:1) stat~: (AIR p. 220, para 1)

"It is, in our opinion, well settled that it is not enough for the High Court to take a different view . of the evidence; there must also be substantial and · compelling reasons for holding that the trial court was wrong." (emphasis supplied) ,136. 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 · F in a·pplying 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 Councilbut also must give its clear reasons 199 .. for coming to the conclusion that the order of acquittal was wrong." The Court concluded as follows: "9. The foregoing discussion yields the following results: a (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, c (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 D 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."

37Again, in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405, the point was raised before a Constitution Bench I of this Court. Taking note of earlier decisions, it was observed as follows: - J__ "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 G innocence is reinforced by the order of acquittal and so, --y- '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 ~nd compelling reason's·: 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 tpe 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 s~ated 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 obser\iations 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. Al! 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 a·nd compelling reasons' shouldnot be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of Punjab (1962 Supp 1 SCR 104) and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse." (emphasis supplied) 3i3. Yet in another leading decision in Shivajl Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793). this Court held that in India, there is no jurisdictional limitation on the y 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 nova, 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." t

39Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court c observed as follows: "6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of s.ocial 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' ;;;;i;.- 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 lightheartedly, 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 tur,n. leads to a pub.lie d~mand for harsher legaL '· presumptions against indicted.'persons 1 and more severe · punishment of Jhose who are fpundguilty. Thus, too .··· · :··-frequent acquittals. of the guilty may lead to a ferocious·· ·penal law, eventually eroding the judicial protection of the· ··guiltless.

For all these reasons it is true to say, with ··Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.. . .' In short, our jurisprudential enthusiasm for presume.d 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. n (emphasis supplied) 40. ln.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. E 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 arid compelling reasons' only and courts used · to launch on a search to. discover.thos~ 'subst.anti~l and .. .. compelling reasons' .. However, the 'formulae 1 of 'substantial · · and compelling reasons',· 'good:. and suffiCien;tly cogent .· reason~· 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 Shea Swarup .v'. R. Emperor and reaffirmed those principles. After ·. Sanwat Singh v. State of Rajasthan this Court has 9··.·. .. j 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 Shea 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 l~mguage, to emphasise the reluctance of t 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 c 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 thatfo 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 E any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of·a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential G 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)

41In Ramesh Babula/ 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 app~llate 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 onlyreappraise the evidence to arrive at its own conclusions."

42In Allarakha K. Mansuri v. S,tate of Gujarat (2002) 3 SCC 57, referring to earlier decisions, the Court stated: "7. The paramount consid~_ration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is I such a view which is based upon legal and admissible evidence~ Only because the accused has been acquitted by the tri"al court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."

43In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, r 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 A the trial court even if that view was not correct, this Court observed: "7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the .Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper.

On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in c· 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".

44In Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470, this Court said: "12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an· order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity."

45In Ramanand Yadav v. Prabhu Nath Jha (2003)'12 SCC 606, this Court observed: y "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 I -+ favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed _,j,.._ any offence or not".

46Again 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)

47From the above decisions, in Chandrappa and Ors. v. State of Kamataka (2007 (4) SCC 415), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (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. [2008] 17 S.C.R. e .'-I (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 ahpellate 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 COl:Jrt should not disturb the finding of acquittal recorded by the trial court.

48A person has, no" doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, oy 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 defe~dant 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 c one piece of evidence may confirm the other." 49.·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.

50The 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 re.asonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then [2008) 17 S.C.R. e A was) in State of U.P. v. Krishna Gopal (1988 (4) SCC 302).

51The above position was hi~hlighted in Krishnan ,and Anr. V. State represented·by Inspector of Police (20p3 (7) sec 56).

52When the conclusions of the High Court are considered in the background of the principles set out above, the inevitable conclusion is that' the appeals are without merit, deseni'e dismissal, which we direct. R.P. Appeals dismissed.