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TMI Blog2009 (4) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... W5) the father of the deceased had spent sufficient money for the marriage, accused Nepal Singh was not satisfied with the dowry. He demanded a gas connection which deceased conveyed to her mother Lajwant (PW6) on which her father (PW5) got the gas connection and gave it to Manju. On 16.5.1991, deceased had come to Bapora (village of her father) to attend the marriage of the daughter of Shyam Pal Singh (brother of her father). Deceased told her father (PW5) and mother (PW6) that accused had completed his course and wanted her to bring Rs. One lakh from them and that if she failed to do so, accused would turn her out of the house. Yudhishter Singh (PW5) told her that he would arrange for the money. On 23.5.1991 deceased left for Kanti (village of her in-laws) accompanied by Sunil Kumar (PW7), her brother. While going, deceased told her father to arrange for the money otherwise her in laws would not allow her to live. Since Yudhishter Singh (PW5) could not arrange money, Manju had committed suicide by consuming some poisonous substance. On receiving information on 26.5.1991, Yudhishter Singh (PW5) alongwith SarpanchMitter Pal and Head Constable Rohtas Singh (PW3) met SI-R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure, 1973 (hereinafter referred to as the 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 the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits 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. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), 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 acquittal passed by any court other than a High Court, or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 10. 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. 11. Though 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. 12. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Empe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. 14. His Lordship, then proceeded to observe: (IA p.404) Sections 417, 418 and 423 of the Code 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. No limitation should be placed upon that power, unless it be found expressly stated in the Code. 15. The Committee, however, cautioned appellate courts and stated: (IA p.404) 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 certainly n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there 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 . 21. 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 reversed not on the ground that the accused had failed to explain the circumstances appearing against him but onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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 Council but also must give its clear reasons 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: (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, (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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 26. Yet in another leading decision in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) 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 scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. 27. Putting emphasis on balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court against an order of acquittal under Section 378 of the 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 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 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 Sheo Swarup v. R. Emperor and reaffirmed 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 case. Occasionally phrases like manifestly illegal , grossly unjust , have been used to describe the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, 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 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 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. 31. In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nviction; 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 (2003) 12 SCC 606 , this Court observed: 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 court should not disturb the finding of acquittal recorded by the trial court. 36. A 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, by Sweet an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 9.50 P.M. on 25.5.1991 to lodge the report regarding the death of the deceased. The father of the appellant had already sent one Dharam Pal for giving intimation of the death to her parents. PW5 admitted that at the time of marriage Nepal Singh was studying in MA Class in Delhi and after doing M.A. he had gone to Ahmedabad to undergo some training. He accepted that the deceased had told him that the accused had returned from Ahmedabad on 13.5.1991 after completing his course. It has also been admitted by PW5 that he did not send any amount to Nepal Singh while he was prosecuting studies at Ahmedabad. In the FIR PW had stated that he had told that he would arrange money. After the marriage on 23.5.1991 victim went back to village Kanti with her brother Sunil Kumar (PW7) and while going back she told her father that if money was not arranged the accused and his family members will not allow her to breathe. 41. During cross-examination he accepted that all this was not stated during investigation. He also accepted that it was not mentioned in the FIR that gifts and other articles were given as dowry. He accepted that his father in law Udai Singh had settled the marriage between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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