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TMI Blog2008 (7) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 acquittal 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 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 Ghur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 Medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s laboratory in the light of the statements of the eye-witnesses, medical report and site-plan. He submitted his report, Ex. CKa. 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 such was inconsistent with the prosecution story. The trial court further provided that it is difficult to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the pressure and friction and fire comes out through the vents or openings on the wall of the percussion cap. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (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. Accordingly, the trial court reasoned that two weapons were used. 29. The Ballisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused should be adopted. 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 antemortem 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again reiterated the legal position as under: 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: 22. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be justified in setting aside such an order of acquittal. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion 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 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 conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 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 un ..... 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