TMI Blog2007 (2) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... aring 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 emphasize 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 available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. In our view, the submission of the learned Counsel for the appellants is well founded that it is not material whether Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences with which they were charged. They are ordered to be set at liberty forthwith unless their presence is required in any other case. - C.K. Thakker And L.S. Panta, JJ. For the Appellant : Sushil Kumar, Sr. Adv. and Rajesh Mahale, Adv For the Respondent : Sanjay R. Hegde, Anil K. Mishra, Vikrant Yadav and Sashidhar, Advs. JUDGMENT C.K. Thakker, J. 1. The present appeal is filed against the judgment and order of conviction dated November 24, 2005 passed by the High Court of Karnataka in Criminal Appeal No. 1008 of 1999 whereby it set aside the order dated July 14, 1999 passed by the Additional Sessions Judge, Tumkur in Sessions Case No. 16 of 1991 acquitting the accused (appellants herein) of offences punishable under Sections 143, 147, 148, 302 and 324 read with Section 149 of the Indian Penal Code ('IPC' for short). 2. Brief facts of the case are that Accused No. 2, Somashekhara, Accused No. 8, Thammaiah and PW 8 Krishnaiah were running a Chit Transaction in which successful members were given articles like vessels, watches, sarees, cloth-pieces, etc. The said transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him. 3. Inquest over the dead body of deceased Anjinappa was done and the dead body was sent for post-mortem examination. PW 11 Dr. Hanumakka who conducted the postmortem opined that the injuries were ante mortem in nature. She found a punctured wound over the left 3rd inter costal space extending from medial edge of the areola of left nipple obliquely downwards and medially 2 x 2 size with clean cut margin and fat protruding through the wound the depth of which was 3= inches. Likewise, injuries to PWs 2 to 4 were also proved by PW 12, Dr. Chandrasekhara Prasad. 4. After completion of investigation, all the accused were charged for offences punishable under Sections 143, 147, 148, 324, 302read with Section 149 of IPC. In order to substantiate its case, the prosecution examined 13 witnesses. PWs 1 to 4 were portrayed as eye witnesses and amongst them, PWs 2 to 4 were shown to be injured persons. They supported the case of the prosecution as to Chit Transaction, the incident which took place at about 5.30 p.m. on October 30, 1989 as also the assault at 9.30 p.m. on the same day. 5. The learned Additional Sessions Judge, however, considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled law that an order of acquittal can be set aside by the High Court only if the appellate Court is satisfied that the reasons in support of acquittal recorded by the Trial Court are non-existent, extraneous, perverse, acquittal palpably wrong, totally ill-founded or wholly misconceived; the Court had 'obstinately blundered' or reached the conclusion, 'wholly wrong', 'manifestly erroneous' or 'demonstrably unsustainable', which resulted in miscarriage of justice. According to him, the view taken by the Trial Court was legal, proper and in consonance with law and the High Court, in an appeal against acquittal, ought not to have disturbed the order even if two views were possible. He, therefore, submitted that the appeal deserves to be allowed and the appellants are entitled to acquittal. 9. Mr. Hegde, learned Counsel for the respondent-State supported the order passed by the High Court. He submitted that once an order of acquittal is challenged by the State, the appellate course has all the powers which were exercised by the Trial Court and it is open to the appellate Court to reappreciate and review such evidence and to come to its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1) or under Sub-section (2). Whereas Sections 379-380 cover special cases of appeals, other sections lay down procedure to be followed by appellate courts. 11. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the Trial Judge, recorded an order of conviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an appellate Court had the power to interfere with the findings of fact recorded by the Trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the 'humble advice of their Lordships', leave was granted by His Majesty. The case was, thereafter, argued. The Committee considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (emphasis supplied) 14. In Nur Mohammad v. Emperor, the Committee reiterated the above view in Sheo Swarup and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal. So far as this Court is concerned, probably the first decision on the point was Prandas v. State AIR1954SC36 (Though the case was decided on March 14, 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 eye-witnesses. 15. Upholding the decision of the High Court and following the proposition of law in Sheo Swarup, a six- Judge Bench speaking through Fazl Ali, J. unanimously stated: 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 P. C, to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (emphasis supplied) 19. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong. The Court concluded: The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) substantial and compelling reasons , (ii) good and sufficiently cogent reasons , and (iii) strong reasons are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. (emphasis supplied) 22. Yet in another leading decision in Shivaji Sahabrao Bobade v. State of Maharashtra 1973CriLJ1783 , this Court held that in India, there is no jurisdictional limitation on the powers of appellate Court. In law there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinize 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 considerations. 23. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, Krishna Iyer, J. said; Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and Courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh and Ors. v. State of Rajasthan. In Sanwat Singh's case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swamp v. Emperor and re-affirmed those principles. After Sanwat Singh v. State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup's case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re- appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. 26. In Bhagwan Singh and Ors. v. State of M.P. 2002CriLJ2024 , the trial Court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the trial Court even if that view was not correct, this Court observed; We do not agree with the submissions of the learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 28. In Ramanand Yadav v. Prabhunath Jha 2004CriLJ640 , this Court observed; There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 31. Applying the above principles to the case on hand, we are of the considered view that the learned Counsel for the accused is right in submitting that the High Court ought not to have disturbed an order of acquittal recorded by the trial Court. For acquitting the accused and extending them the benefit of doubt, the trial Court observed that the prosecution had failed to examine certain persons who could have unfolded the genesis of the prosecution case. The trial Court indicated that the root cause of the quarrel was refusal to exchange copper vessel (Kolaga) to Nagraj, winner of the draw, but he was not examined. Likewise, ..... 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