TMI Blog2009 (5) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... re-appreciate, 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. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Powers of Appellate Court - Chandrappa and Ors. v. State of Karnataka [ 2007 (2) TMI 704 - SUPREME COURT] ,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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased took place at 1.40 p.m. and the same fact is not disputed by the accused persons. Between 2.40 and 2.45 p.m. the deceased and the injured were taken to the Government Hospital by PW-9 which is also 12 KM from the place of occurrence. The medical intimation is Ext.P-25 which was sent to the Station Incharge at 2.45 p.m. PW-1 the de facto complainant was examined by PW-22 at around 3.30 p.m. The Station Incharge received information around that time. At 4.00 p.m. the statement of the de facto complainant (PW-1) was recorded by the Head Constable in the presence of PW-22. The statement of PW-1 along with Ext.P-25 was sent to Police Station on the point of jurisdiction and the same was registered by PW-21. The inquest was held at around 9 to 12 p.m. and copy of FIR was received by the Magistrate. It is to be noted that since the Magistrate was on leave and Magistrate at another place was not the incharge, it was sent to another Court which is at a distance of 60 K.M. as is evident from the evidence of PW-21. Therefore, there is no delay in sending the FIR to the Magistrate. The allegation that the FIR was ante timed is without any foundation. The impugned judgment cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bomb hurled by A-3 hit the head of the deceased and exploded causing blasting of his skull resulting in his instantaneous death. The bombs hurled by the other accused hit the deceased and PWs. 1 to 4. They suffered splinter injuries all over the body and the car was also badly damaged. Due to explosion of bombs, A-5 sustained splinter injuries and fell down unconscious. A-5 was shifted to the house of his uncle by the other accused and PWs 1 to 4 were shifted to Pulivendula hospital for treatment. PW-25, the Head Constable of Pulivendula Police Station, went to the hospital and recorded the statement of PW-1 at 4.00 PM and forwarded the same to Vemula Police Station on the point of jurisdiction. On the basis of the said complaint, a crime was registered at 5.45 PM and copies of FIR were sent to all concerned. PW-30, the Inspector of Police, took up the investigation, held inquest over the dead body of the deceased from 9.00 PM to 12.00 midnight and got conducted postmortem examination over the dead body of the deceased. Immediately after inquest PW-32 took up further investigation and arrested the accused on various dates. On surrender of A-15, a judicial confession was recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be truthful and reliable. The investigation in the case was tainted and there were several lapses in the process of conducting the investigation. PWs 1 to 4 were members of the deceased's group and, therefore, their evidence could not have been believed. The doctor helped the prosecution as he did not conduct the post mortem examination or the internal examination of the dead body. The dead body was shifted and the injured witnesses also unauthorisedly went out from the scene of offence and there was no reason given. 5. Learned Counsel for the respondent-State on the other hand submitted that the trial Court's approach was erroneous and its conclusions were perverse. The High Court was therefore justified in setting aside the acquittal and directed conviction. 6. In view of rival submissions of the parties, we think it proper to consider and clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the present Code ) deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a criminal court except as provided by the Code or by any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Whereas Sections 379-380 cover special cases of appeals, other sections lay down procedure to be followed by appellate courts. 8. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code ) which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate court in an appeal against an order of acquittal, we have confined ourselves to one aspect only i.e. an appeal against an order of acquittal. 9. Bare reading of Section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, 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 det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave was granted by His Majesty. The case was, thereafter, argued. The Committee considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an Appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with an appeal against acquittal and an appeal against conviction. Though several authorities were cited revealing different views by the High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases. 13. Lord Russel summed up the legal position thus: There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has `obstinately blundered', or has `through incompetence, stupidity or perversity' reached such `distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted or miscondu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. In Surajpal Singh v. State 1952 CriLJ 331, 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. 20. In Ajmer Singh v. State of Punjab 1953 CriLJ 521 the accused was acquitted by the trial court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached this Court. It was contended by him that there were no compelling reasons for setting aside the order of acquittal and due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aher Raja Khima v. State of Saurashtra 1956 CriLJ 426 the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p. 220, para 1) It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong. (emphasis supplied) 24. In Sanwat Singh v. State of Rajasthan 1961 CriLJ 766, a three- Judge Bench considered almost all leading decisions on the point and observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The Court, however, noted that appellate courts found considerable difficulty in understanding the scope of the words substantial and compelling reasons used in certain decisions. It was observed inter-alia as follows: This Court obviously did not and could not add a condition to Section 417 of the Criminal Procedure Code. The words were intended to conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons'. In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in Clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasize is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in Sheo Swarup the presumption of innocence in favour of the accused `is not certainly weakened by the fact that he has been acquitted at his trial'. Therefore, the test suggested by the expression `substantial and compelling reasons' should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of Punjab 1962 Supp 1 SCR 104 and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that `a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. 28. In K. Gopal Reddy v. State of A.P 1980 CriLJ 812, the Court was considering the power of the High Court against an order of acquittal under Section 378 of the present Code. After considering the relevant decisions on the point it was stated as follows: 9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for `substantial and compelling reasons' only and courts used to launch on a search to discov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 29. In Ramesh Babulal Doshi v. State of Gujarat 1996 CriLJ 2867 , this Court said: While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions. 30. In Allarakha K. Mansuri v. State of Gujarat 2002 CriLJ 1489 , referring to earlier decisions, the Court stated: 7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. 32. In Harijana Thirupala v. Public Prosecutor, High Court of A.P. 2002 CriLJ 3751, 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. 33. In Ramanand Yadav v. Prabhu Nath Jha 2004 CriLJ 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal 1989 CriLJ 288). 39. The above position was highlighted in Krishnan and Anr. v. State represented by Inspector of Police 2003 CriLJ 3705. 40. It is to be noted that in the instant case the incident took place in front of MDO office at Vemula around 1.40 p.m. The finding of the trial Court is to the effect that murder of deceased took place at 1.40 p.m. at Vemula and the same fact is not disputed by the accused persons. Between 2.40 and 2.45 p.m. the deceased and the injured were taken to the Government Hospital at Pullvendula by PW-9 which is also 12 KM from the place of occurrence. The medical intimation is Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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