Supreme Court of India
STATE OF GOAversusPANDURANG MOHITE
- Citation
- 2008 INSC 1408
- Decided
- 8 December 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The appeal is dismissed; the High Court's acquittal stands as the circumstantial evidence was insufficient and no substantial and compelling reason exists to overturn it.
Summary
The State of Goa appealed the acquittal of Pandurang Mohite, who had been charged under Sections 302, 392 and 201 IPC for the murder of a missing boy. The trial court had convicted Mohite on the basis of circumstantial evidence, chiefly the "last seen" testimony of two witnesses who claimed to have seen the accused with the deceased at the same time, an assertion the High Court found implausible. The High Court set aside the conviction, holding that the evidence did not satisfy the stringent tests for circumstantial proof and that the contradictory witness statements created reasonable doubt. The Supreme Court examined the standards for conviction on circumstantial evidence and the scope of appellate power under Section 378 of the CrPC. It reiterated that an appellate court may overturn an acquittal only for "substantial and compelling reasons" and that the presumption of innocence is reinforced by an acquittal. Finding no such reasons and noting the inconsistencies in the last‑seen theory, the Court dismissed the appeal, upholding the High Court's acquittal.
Issues considered
- The adequacy of circumstantial evidence, particularly the "last seen" theory, to sustain a conviction under Sections 302, 392 and 201 IPC.
- Whether the appellate court can set aside an acquittal under Section 378 of the CrPC absent substantial and compelling reasons.
- The proper standards for evaluating the reliability of witness testimony in circumstantial cases.
Legislation cited
- Code of Criminal Procedure, 1973s. 372, s. 373, s. 374, s. 375, s. 376, s. 378, s. 379, s. 380, s. 423
- Indian Penal Code, 1860s. 201, s. 302, s. 392
Subjects
circumstantial evidencelast seen theoryappeal against acquittalSection 378 CrPCpresumption of innocencereasonable doubtburden of proof
Judgment
(2008] 17 S.C.R. 176
A STATE OF GOA
II.
PANDURANG MOHITE
(Criminal Appeal Nos. 598-599 of 2002)
DECEMBER 8, 2008 . ··
B
. [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860:
c
Ss.302, 392 and 201 - Conviction by trial court on the
basis of circumstantial evidence relating to accused last seen
with deceased - Acquittal by High Court - Held: Conviction
can be based solely on circumstantial evidence but it should
o be tested by the touch-stone of Jaw relating to circumstantial
evidence - In the instant case, the evidence of two witnesses
to have seen the accused with the deceased at the same
time at different places seems to be an impossibility -
. Judgment of High Court warrants no interference -
E Circumstantial evidence -Code of Criminal Procedure, 1973
- s.378 - Appeal against acquittal""" Constitution of India,
1950 - Article 136.
-
On 2.3.1998 at 7.15 A.M. a report was lodged at the
Police Station that complainant's son was missing. It was
F stated that on 1.3.1998 at about 7.30 A.M. whenrthe I
complainant along with his son was returning from the -+-·
annual fair, his son stayed behind and thereafter did not
reach home. When the complainant returned from the
Police Station, PW 3 told him that he saw his son with the
G accused at 7.15 P.M the previous day. The matter was
reported to the police and the acc1:1sed was taken to the
police sta~ion on 2.3.1998 itself. At the instance of the ,,_
accused, dead body of the son of the complainant was
' rec9vered from the jungle. The trial court relying up'?~ the
H 176
- STATE OF GOA v. PANDURANG MOHITE
last seen theory ·and the evidence of PWs 3 and 8 in this
regard, convicted and sentenced the accused u/ss 302,
177
A
392 and 201 IPC. However, the High Court set aside the
conviction. Aggrieved, the State filed the appeal.
Dismissing the appeal, the Court B
HELD:1.1. It 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 c
the guilt of any other person. The 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. D
[Para 7] [185-A-D]
... Bhagat Ram v. State of Punjab AIR 1954 SC 621;
Hukam Singh v. State of Rajasthan AIR't977 SC 1063; Eradu
and Ors. v. State of Hyderabad AIR 1956 SC 316;
-1 E
Earabhadrappa v. State of Karnataka AIR 1983 SC 446; State
Qf 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; C. Chenga
Reddy and Ors. v. State of A.P. (1996) 10 SCC 193; Padala
Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 and
F
....
~
State of U.P. v. Ashok Kumar Srivastava, 1992 Crl.LJ 1104,
relied on.
'Wills' Circumstantial Evidence" (Chapter VI), referred
to. G
~ ( --{
1.2. There is no doubt that conviction can be based
( solely on circumstantial evidence but it should be tested
~
!
by the touch-stone of law relating to circumstantial
....,.., evidence laid down by the this Court. [Para 12] (187-8-C]
H
--{
•
A
178 SUPREME COURT REPORTS [2008) 17 S.C.R.
Hanumant Govind Nargundkar and Anr. V. State of
..
Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand
Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of
Rajasthan v. Raja Ram 2003 (8) SCC.180; State of Haryana
v. Jagbir Singh and Anr. 2003 (11) SCC 261 and Kusuma
B Ankama Rao v State of A.P. 2008(10) SCR 89, referred to.
1.3. So far as the last seen aspect in the instant case
is concerned, PWs 3 and 8 claimed to have seen the
accused a~ the same time and to have carried him in the
C motor cycle which itself is an 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 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
D on 2.3.1998 at 11 PM. The High Court found it strange that
his statement was not recorded on that day. On 2.3.1998
police was treating the respondent as1 an accused and
had started inyestigation. That being so there was no
difficulty in recording the statement of PW 3 on 2.3.1998.
E [Paras ·16 and 19] [189-G-H; 190-A-D] '
- ' /'
State of U.P. v. Satish 2005 (3) SCC 114; Ramreddy
Rajeshkhanna Reddy v. State of A.P. 2006 (10) SCC 172 and
Jaswant Gir v. State of Punjab 2005 (12) SCC 438, referred
F to.
I
2.1.· Though no restrictions have been imposed by -j>
the legislature on the powers of the appellate court in
dealing with appeals against acquittal, it' cannot be
forgotten that in case of acquittal, there is a double
G presumption in favour of the accused. Firstly, the
presu_mption 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,
H the accused having secured an acquittal, the
STATE OF GOA v. PANDURANG MOHITE 179
presumption of his innocence is certainly not weakened A
--{- but reinforced, reaffirmed and strengthened by the trial
-- court. In Chandrappa's case* this Court has culled out the
general principles regarding powers of the appellate
court while dealing with an appeal against order of
acquittal. [Paras 23 and 24] [192-G-H;193-B-C] B
*Chandrappa and Ors. v. State of Kamataka 2007 (4)
SCC 415; Prandas v. State AIR 1954 SC 36; Surajpal Singh
).,
v. State 1952 SCR 193; Ajmer Singh v. State of Punjab 1953
SCR 418; At/ey v. State of U.P. AIR 1955 SC 807; Aher Raja
Khima v. State of Saurashtra (1955) 2 SCR 1285; Sanwat
c
Singh v. State of Rajasthan (1961) 3 SCR 120; M.G. Agarwal
v. State of Maharashtra (1963) 2 SCR 405; Shivaji Sahabrao
Bobade v. State of Maharashtra 1973 (2) SCC 793; K. Gopal
Reddy v. State of A.P (1979) 1 SCC 355; Ramesh Babula/
Doshi v. State of Gujarat (1996) 9 SCC 225; Allarakha K. D
Mansuri v. State of Gujarat (2002) 3 SCC 57; Bhagwan Singh
-f v. State of M.P. (2002) 4 SCC 85; Harijana Thirupala v. Public
Prosecutor, High Court of A.P. (2002) 6 SCC 470; Ramanand
Yadav v. Prabhu Nath Jha (2003) 12 SCC 606 and Kallu v.
State of M.P. (2006) 10 SCC 313, referred to. E
Sheo Swarup v. R. Emperor (1934) 61 IA 398 and Nur
-- Mohd. v. Emperor AIR 1945 PC 151, referred to.
2.2. A person has, no doubt, a profound right not to
be convicted of an offence which is not established by F
~
. +- the evidential standard of proof beyond reasonable
doubt. Though this standard is of a higher degree, there
is, no absolute standard. What degree of probability
amounts to "proof' is an exercise particular to each case.
[Para 48] [208-F] G
..
State of U.P. v. Krishna Gopal 1988 (4) SCC 302 and
---.::
Krishnan and Anr. v. State represented by Inspector of Police
2003 (7) sec 56, referred to .
H
180 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
•
A· "The Mathematics of Proof //": Glanville Williams,
Criminal Law Review, 1979, by Sweet and Maxwell, p.340- -y
342, -referred to.
3. In view of the conclusions of the High Court ' -
considered in the background of the P.rinciples laid down
B by this Court, the appeals are without merit. [Para 52]
(210-B]
Case Law Reference _,.--1
AIR 1977 SC 1063 relied on Para 7
c
AIR 1956 SC 316 relied on Para 7
AIR 1983 SC 446 relied on· Para 7
... AIR 1985 SC 1224 relied on Para 7
D Para 7
AIR 1987 SC 350 relied on
AIR 1989 SC 1890 · relied on Para 7 ).
AIR 1954 SC 621
'. relied on Para 7
E (1996) 10 sec 193 relied on Para 8
AIR 1990 SC 79 relied on Para 9
1992 Crl.LJ 1104 relied on Para 10
AIR 1952 SC 343 referred to Para 13
F
AIR 1984 SC 1622 referred to Para 14 •
--¥ -
2003 (8) sec 180 referred to Para 15
I
2003 c11) sec 261 referred to Para 15
G
2008(10) SCR 89 referred to Para 15
2005 (3) sec 114 referred to Para 16 .....
2006 c10) sec 112 referred to Para 17
H 2005 (12) sec 438 referred to Para 18
STATE OF GOA v. PANDURANG MOHITE 181
[DR. ARIJIT PASAYAT, J.]
(1934) 61 IA 398 referred to Para 26 A
-1-
AIR 1945 PC 151 referred to Para 29
--,...-
AIR 1954 SC 36 referred to Para 30
1952 SCR 193 referred to Para 32 B
1953 SCR 418 referred to Para 33
AIR 1955 SC 807 referred to Para 34
(1955) 2 SCR 1285 referred to Para 35
c
(1961) 3 SCR 120 referred to Para 36
(1963) 2 SCR 405 referred to Para 37
1973 (2) sec 793 referred to Para 38
(1979) 1 sec 355 referred to Para 40 D
-
• ~
(1996) 9 sec 225 referred to Para 41
(2002) 3 sec sr referred to Para 42
c2002) 4 sec 85 referred to Para 43 E
c2002) 6 sec 410 referred to Para 44-
(2003) 12 sec 60& referred to Para 45
(2006) 10 sec 313 referred to Para 46
F
,,..~ -
-- 2001 (4) sec 415
1988 (4) sec 302
referred to
referred to
Para 47
Para 50
2003 (7) sec 56 referred to Para 51
•
--J
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 598-599 of 2002.
G
---.:
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. H
\
182 SUPREME COURT REPORTS 1 [2008] 17 S.C.R.
A A Subhashyini for the Appellant.
r
K. Sarda Devi for the Respondent. .
The Judgment of the Court was delivered by
B DR. ARIJIT PASAYAT, J.1. Challenge 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
c 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.
2. In appeals the High Court found. the evidence t~ be
D inadequate and directed acquittal.
.
3. Prosecution version in a nutshell is as follows: ~-
Chandrakant Mahadeshwar and his son Shyam
E 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 •
F
time. So, Chandrakant left behind Shyam at Valpoi and went
• • l_ - • - ...
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
G 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
STATE OF GOA v. PANDURANG MOHITE 183
[DR ARIJIT PASAYAT, J.]
at about 7.15 a.m, and he had left them there. Ramjatan then A
..,., 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.
B
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
r, evening. Thereafter, the police came there. The accused was
taken to the police station. There was one bicycle. It was seized
by the police.
c
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 F
~
"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 G.
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. H
184 SUPREME COURT REPORTS [2008] 17 S.C.R.
A 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
C examination on the dead body and gave his opinion that the
cause of death was due to post mortem burns.
4. On completion of investigation charge sheet was filed
and the accused faced trial. There was no eye witness to the
D 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 I
3 & 8. As noted above the trial court placed reliance on the'
E . evidence of PWs 3 & 8 and directed conviction which in appeal
was set aside by the High Court.
5. Learned 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
F 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
G sufficient to fasten the guilt on the accused.
6. Learned 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
H of acquittal, this appeal is sans merit.
STATE OF GOA v. PANDURANG MOHITE 185
[DR. ARIJIT PASAYAT, J.]
7. It has been consistently laid down by this Court that A
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); B
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 D
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.
8. We may also make a reference to a decision of this E
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 F
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 G
of the guilt of the accused and totally inconsistent with his
innocence .... ".
9. In 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 H
186 SUPREME COURT REPORTS [2008] 17 S.C.R.
e ,....
,'
...,
A following tests:
~
"(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
· established;
B (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
c conclusion that within all human probability the crime was
committed by the accused and none else; and
I
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation
}--
of any other hypothesis than that of the guilt of the accused
D and such evidence should not only be consistent with the ~
I
guilt of the accused but should be inconsistent with his l
innocence." 1 ...._
10. In State of u:P. v. Ashok Kumar Srivastava, (1992 I
E 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 '
F established and the cumulative effect of all the ·facts so
established must be consistent only with the hypothesis of guilt. -~
I
11. Sir 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
G evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt r--
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
....'··
H direct or circumstantial evidence the best evidence must be
STATE Of GOAv. PANDURANG MOHITE 187
[DR. ARIJIT PASAYAT; J.]
addJced which the nature of the ca~e admits; (4) in order to A
.... 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". B
12. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested by the touch-
stone of law relating to Circumstantial evidence laid down by
the this Court as far back as in 1952:
c
13. In 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 D
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 E
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
F
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."
14. A reference may be made to a later decision in
Sharad Birdhichand Sarcia v. State of Maharashtra, (AIR 1984 G
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 H
188 SUPREME COURT REPORTS [2008) 17 S.C.R.
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
B 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;
c
(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
D
(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
E done by the accused."
15. These 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
F Rao v State of AP. (Criminal Appeal No.185/2005 disposed
of on 7.7.2008)
-~
16. So 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:
G
"22. The last seen theory comes into play where the time-
gap 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
H other than the accused being the author of the crime
STATE OF GOA v. PANDURANG MOHITE 189
[DR. ARIJIT PASAYAT, J.]
becomf!S impossible. It would be pifficult in some cases A
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 B
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."
17. In 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 D
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".
E
(See also Bodh Raj v. State of J&K (2002(8) SCC
45).)"
18. A similar view was.also taken in Jaswant Gir v. State
of Punjab [2005 (12) SCC 438] and Kusuma Ankama Rao's
case (supra). F
\
,.,......
19. It 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 G
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
H
. 190 . SUPREME COURT REPORTS [2908] 17 S.C.R.
e
.....
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
was obtained as an accused. In other words on 2.3.1998 police
D
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. 'r
1
20. It is proper to consider and clarify the 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
'r"
and may be quoted in extenso:
,.
"378(1) Save as otherwise provided in sub-section (2) and
H
.··STATE OF GOA v. PANDURANG MOHITE 191
[DR. ARIJIT PASAVAT, J.]
subject to the provisions of sub-sections (3) and (5),- A
;.,;,
(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
'
(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 D
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 sub-
section (3), also direct the Public Prosecutor to present an
E
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;
F
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 H
192 SUPREME COURT REPORTS [20018] 17 S.C.R.
e
·-..
A 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
B
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.
c
(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)."
D
21. Whereas Sections-379-380 cover special ca1ses of
appeals, other sections lay down procedure to be followed by
appellate courts. 'r
22. It may be stated that more or less similar provisions
E 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
F 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.
23. Bare reading of Section 378 of the present Code
(appeal in case of acquittal) quoted above, makes it clear that
G
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
H
STATE OF GOA v. PANDURANG MOHITE 193
[DR ARIJIT PASAYAT, J.]
and to reach its own conclusions on such evidence. Both A
questions of fact and of law are open to determination by the
High Court in an appeal against an order of acquittal.
24. It cannot, ho,ver, be forgotten that in case of acquittal,
there is a double presumption in favour of the accused. Firstly, B
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
c
-
' strengthened by the trial court.
25. 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 D
consider some of the leading decisions on the point.
..,,
26. The 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
E
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
F
\
+- 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 G
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
~
I of the trial Judge, recorded an order of conviction. A petition
was presented to His Majesty in Council for leave to appeal H
194 SUPREME COURT REPORTS [2008] 17 S.C.R.
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,
E 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'
F 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." · ·
!'. . -~
G · His Lordship, then pr6c~kded to obser\le: ·,<I.A.. p.404)
. . .I
... -. '. .
''..Sections 417,.41~~~ndA23 of t6~ pdcie giJ~ the Higti.t6
... Courtfull powertd:revlew atlarg~ the evitlenee upon which
. the .order of .acquittaJwas·founded, and:':to~reach the
'\
.H conclus.lon
. . Upofr
that . ·... :·..
that
.
evidence·. the cirder of acquittal
•, ·.'
..... ·'
·
STATE OF GOA v. PANDURANG MOHITE 195
[DR. ARIJIT PASAYAT, J.]
should be reversed. No limitation should be placed upon A
..,,, . that power, unless it be found expressly stated in the
..... Code."
.. 28. The Committee, however, cautioned appeUate courts
and stated: ·(IA p.404).
B
"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
.
Judge as to the credibility of t~e witnesses; (2) the · c
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." E
(emphasis supplied)
-
\
29. In 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 F
.... l- full powers to review and to reverse acquittal.
30. So 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 G
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
H
196 SUPREME COURT REPORTS [2008] 17 S.C.R.
A eyewitnesses.
31. Upholding the decision of the High Court and following
the proposition of law in Sheo Swarup (supra), a six-Judge
Bench held as follows:
B "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
c subordinate court has in some way or other misdirected
itself so-as to produce a miscarriage of justice."
. (emphasis supplied)
32. In Surajpa/ Singh-v. State (1952 S°CR 193), a two-
D 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 -r
acquittal was founded. But it was equally well settled that the
presumption of innocence of the accused was further reinforced
E 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.
F 33. In 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
G 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
H 'prima facie' case is made out against an accused person it is
STATE OF GOA v. PANDURANG MOHITE 197
[DR. ARIJIT PASAYAT, J.]
his duty to explain the circumstances appearing in evidence A
...,.,
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: B
"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
the accused had failed to explain the circumstances c
appearing against him but only for very substantial and
compelling reasons."
(emphasis supplied)
D
34. In Atley v. State of U.P. (AIR 1955 SC 807) this Court
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
F
review the entire evidence and to come to its own
--- L 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
G
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 [2008) 17 S.C.R.
A 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.
B
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."
E (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:
G "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
H
STATE OF GOA v. PANDURANG MOHITE 199 ..
[DR. ARIJIT PASAYAT, J.]
for coming to the conclusion that the order of acquittal was A
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 a
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 E
that the acquittal was not justified."
37. Again, 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: F
- 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 H
200 SUPREME COURT REPORTS [2008) 17 S.C.R.
A 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
B 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 -f
c 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
D
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
E 'substantial a·nd 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
F 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)
G
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
H
STATE OF GOA v. PANDURANG MOHITE 201
[DR. ARIJIT PASAYAT, J.]
evidence on which the order of acquittal is founded and, indeed, A
~ it has a duty to scrutinise the probative material de nova,
J". 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 B
without very convincing reasons and comprehensive
consideration."
t 39. Putting emphasis on balance between importance of
individual liberty and evil of acquitting guilty persons, this Court
observed as follows:
c
"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 D
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 E
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 F
..,.. +- 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 light-
G
heartedly, 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
H
9··.·.
202 SUPREME COURT REPORTS (2008] 17 S.C.R.
... ,•
A 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 .··· ..
--::
j
· :··-frequent acquittals. of the guilty may lead to a ferocious··
·penal law, eventually eroding the judicial protection of the·
B ··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
c 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 .
. ,.
D (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
F · 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
G 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
H
STATE OF GOA v. PANDURANG MOHITE 203
[DR ARIJIT PASAYAT, J.]
consistently recognised the right of the appellate court to A
~ 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 B
interference. But, such expressions have been used more
as flourishes of l~mguage, to emphasise the reluctance of
the appellate court to interfere with an order of acquittal
t
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
D
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
any reasonable doubt. If two reasonably probable and E
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, F
\
+- 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."
H
204 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
,,
A (emphasis supplied)
)-
41. In Ramesh Babula/ Doshi v. State of Gujarat (1996)
9 SCC 225, this Court said:
"While sitting in judgment over an acquittal the appellate
B 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
c 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."
•
D 42. In 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
E 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
F 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
G High Court under all circumstances should not disturb such
a finding."
43. In 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
·H
..
STATE OF GOA v. PANDURANG MOHITE 205
·1 [DR. ARIJIT PASAYAT, J.]
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 B
.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
an appeal against an order of acquittal is that the Court
c·
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 D
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 E
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 F
_..._
\
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". G '
44. In 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
H
206 SUPREME COURT REPORTS [2008) 17 S.C.R.
A 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
B 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
c 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."
D 45. In 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.
E 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
F .,..
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
G
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
H
STATE OF GOA v. PANDURANG MOHITE 207
[DR ARIJIT PASAYAT, J.]
any offence or not". A
46. Again 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 B
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 C
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 D
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) E
47. From 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:
F
\ (1) An appellate court has full power to review, reappreciate
_,j,.._
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 G
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
H
208 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
.'-I
A (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
B 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. I'
c (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
D 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:
E (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.
48. A person has, no" doubt, a profound right not to be
convicted of an offence which is not established by the
F 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
G 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)): 'y
"The simple multiplication rule does not apply if the
H separate pieces of evidence are dependent. Two events
STATE OF GOA v. PANDURANG MOHITE 209
[DR. ARIJIT PASAYAT, J.]
are dependent when they tend to occur together, and the A
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 B
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 D
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 E
in the case.
50. The 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 F
·-
\ 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.
G
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
H
210 SUPREME COURT REPORTS [2008) 17 S.C.R. e
A was) in State of U.P. v. Krishna Gopal (1988 (4) SCC 302).
51. The above position was hi~hlighted in Krishnan ,and
Anr. V. State represented·by Inspector of Police (20p3 (7) sec
56).
B 52. When 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.
C R.P. Appeals dismissed.
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