Holding

The Supreme Court held that the High Court's acquittal was a permissible view of the evidence and declined to interfere, dismissing the appeal.

Summary

The State of Uttar Pradesh appealed the Allahabad High Court's acquittal of Awdhesh, who had been convicted for dacoity under Section 396 IPC. The trial court had sentenced him to life imprisonment, but the High Court set aside the conviction, citing inconsistencies in the prosecution's evidence and the lack of a direct link between the accused and the crime. The Supreme Court examined the scope of an appeal under Section 378 of the Criminal Procedure Code, reaffirming that an appellate court may re‑appreciate the entire evidence and is not limited to overturning only perverse findings, but must respect the double presumption of innocence and intervene only for substantial and compelling reasons. Relying on a long line of precedents, the Court held that the High Court's reasoning, though imperfectly expressed, represented a possible view of the evidence and therefore did not warrant interference. Consequently, the appeal was dismissed and the acquittal stood.

Issues considered

The High Court erred in acquitting Awdhesh on the basis of alleged inconsistencies in the prosecution evidence.
Whether an appeal under Section 378 CrPC permits the appellate court to overturn an acquittal and what standard of review applies.
Whether the evidence against Awdhesh satisfied the requirement of proof beyond reasonable doubt.

Legislation cited

Code of Criminal Procedure, 1973s. 372, s. 373, s. 374, s. 375, s. 376, s. 377, s. 378
Constitution of Indias. 136
Indian Penal Code, 1860s. 396

Subjects

appeal against acquittalpresumption of innocencereasonable doubtSection 378 CrPCdacoityevidentiary standardsappellate reviewcriminal procedure

Judgment

[2008] 13 S.C.R. 269

STATE OF U.P. A
v.
AWDHESH
(Criminal Appeal No. 803 of 2001)
SEPTEMBER 9, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ]

Code of Criminal Procedure, 1973:
s. 378 - Appeal against acquittal - Conviction by trial C
court u/s 396 /PC - Acquittal by High Court - HELD: High
Court has rightly noticed the discrepancies and
inconsistencies in prosecution evidence - A person has a
profound right not to be convicted of an offence which is not
established by evidential standard of proof beyond reasonable D
doubt - Keeping in view the principles regarding power of
appellate court while dealing with an appeal against order of
acquittal, and the view of the High Court being a possible one,
the judgment of High Court requires no interference - Penal
Code, 1860 - s. 396 - Constitution of India, 1950 - Article E
136.
A case u/ss. 396 and 314 IPC was registered against
the respondent and two others in connection with a
dacoity committed at about mid day for about 2-3 hours
by 16-17 dacoits in the house of PW-2 and PW-9, both, F
brothers, wherein their another b(other was killed and
some of the family members were injured. One of the
-; accused absconded and the other died. The trial court
convicted the respondent u/s 396 IPC and sentenced him
to imprisonment for life. But, the High Court acquitted the G
respondent. Aggrieved, the State filed the instant appeal.
Dismissing the appeal, the Court
HELD:1.1 The parameters for dealing with an appeal
269 H
270 SUPREME COURT REPORTS [2008] 13 S.C.R.

A against acquittal have been laid down by this Court in
several cases. In the case of Chandrappa* , the Court has
culled out general principles regarding powers of
appellate court while dealing with an appeal against order
of acquittal. [para 7 and 37] [276 C-D 292-C]
B *Chandrappa and Ors. v. State of Kamataka 2007 (4)
SCC 415; Prandas v. State AIR 1954 SC 36; Atley v. State of
UP AIR 1955 SC 807; Sanwat Singh v. State of Rajasthan
(1961) 3 SCR 120; Bhagwan Singh v. State of MP (2002) 4
SCC 85; and Harijana Thirupa/a v. Public Prosecutor, High
C Court of A.P (2002) 6 sec 470 - relied on.
Ramesh Babula! Doshi v. State of Gujarat (1996) 9 SCC
225; and Ramanand Yadav v. Prabhu Nath Jha (2003) 12
sec 606 - referred to.
D Nur Mohd. v. Emperor AIR 1945 PC 151; and Shea
Swarup v. R. Emperor (1934) 61 IA 398 - referred to.
1.2 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
E 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,
F reaffirmed and strengthened by the trial court. [para 12]
[278 E-G]
Surajpal Singh v. State 1952 seR 193; Ajmer Singh v.
State of Punjab 1953 seR 418; M.G. Agarwal v. State of
G Maharashtra (1963) 2 SCR 405; Shivaji Sahabrao Bobade v.
State of Maharashtra 1973 (2) sec 793; and K. Gopal Reddy
v. State of A.P (1979) 1 sec 355 - relied on.
Aher Raja Khima v. State of Saurashtra (1955) 2 seR
1285; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC
H 57; Ka/Ju v. State of M.P (2006) 10 SCC 313 - referred to.
-4 STATE OF U.P. v. AWDHESH 271

1.3 In the instant case, the High Court primarily A
acquitted the accused on the premises that admittedly
-1 ~
accused 'BS' and 'JS' on the one hand, and PW-2 and the
deceased, on the other, were in inimical terms; the
1 ~
respondent happened to be the brother-in-law of accused
'BS' and the trial court lost sight of the enmity aspect; B
that on the information of the village chowkidar (PW-3),
the case was registered against unknown persons and
no one was named as accused; that it was only when
PW-2 submitted a written report to the Investigating Officer
that the name of the respondent along with two others c
was indicated; that PWs 11 and 12 admitted that they did
~
not know the respondent, yet they deposed as if they
were acquainted with him; that while some of the alleged
dacoits were stated to have covered their faces to conceal
their identity, the three named accused, who were known,
~ D
did not try to cover their faces; that the witnesses on
hearing about the decoity had rushed to the Police Station
and had no occasion to know the names of the accused
persons. [para 4-7] [275 A-H; 276 A]
1.4 A person has, no doubt, a profound right not to E
be convicted of an offence which is not established by
the evidential standard of proof beyond reasonable doubt.
4
Doubts would be called reasonable if they are free from
a zest for abstract speculation. A reasonable doubt is not
--(
an imaginary, trivial or a merely possible doubt, but a fair F
doubt based upon reason and common sense. It must
grow out of the evidence in the case. [para 38-39] [293-C]
''The Mathematics of Proof II": Glanville Williams, Criminal
Law Review, 1979, by Sweet and Maxwell, p.340 (342) -
referred to. G
1.5 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
constitute proof beyond reasonable doubt. There is an
... H
272 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 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. While the protection given by the criminal
process to the accused persons is not to be eroded, at ....
B
the same time, uninformed legitimization of trivialities
would make a mockery of administration of criminal
justice. [para 40] [294 C-E]
State of UP v. Krishna Gopal 1988 (4) SCC 302; Krishnan
c and Anr. v. State represented by Inspector of Police 2003 (7)
sec 56 - relied on.
2. In the instant case, though the judgment is not
happily worded and some of the reasonings are not legally
supportable but the ultimate conclusion is a possible view
D ~
and, therefore, the same is not interfered with. [para 42]
[294-F]
Case Law Reference
(1934) 61 IA 398 referred to para 14
E
AIR 1945 PC 151 referred to para 18
AIR 1954 SC 36 relied on para 19
1952 SCR 193 relied on para 21
1953 SCR 418 relied on para 22
F
AIR 1955 SC 807 relied on para 22
(1961) 3 SCR 120 relied on para 26
(1963) 2 SCR 405 relied on para 27
:I.
G 1973 (2) sec 793 relied on para 28 l.~~

(1979) 1 sec 355 relied on para 30
(1996) 9 sec 225 referred to para 31
(2002) 3 sec 57 referred to para 32
H (2002) 4 sec 85 relied on para 33
STATE OF U.P. v AWDHESH 273

(2002) 6 sec 470 relied on para 34 A
(2003) 12 sec 606 -referred to Para 35
(2006) 10 sec 313 referred to para 36
2007 (4) sec 415 relied on para 37
1988 (4) sec 302 relied on para 40 B
2003 (7) sec 56 relied on para 41
CRIMINALAPPELLATE JURISDICTION: CriminalAppe!'ll
No. 803 of 2001
From the final Judgment and Order dated 14.11.2000 of
c
the High Court of Judicature at Allahabad in Criminal Appeal
No. 1564 of 1980
S.N. Pandey, Anil Kaushik and Chandra Prakash Pandey
for the Appellant. D
Vishwajit Singh for the Respondents.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of a Division Bench of the Allahabad High Court E
setting aside the conviction of the respondent for offence
punishable under Section 396 of the Indian Penal Code, 1860
(in short the 'IPC') as was recorded by learned Vth Additional
Sessions Judge, Fatehpur. The respondent was sentenced to
imprisonment for life by the said judgment; but he was acquitted F
of the charge relatable to offence punishable under Section
314 IPC.
2. Background facts in a nutshell are as under:
A dacoity was committed on 9.5.1973 at about mid day G
for about 2-3 hours in the house of three brothers namely
Ramdas (PW-9), Har Prasad (PW-2) and Hiralal (hereinafter
referred to as the 'deceased') in village Palia Buzurg within the
area of police station Hathgaon, district Fatehpur. It was alleged
that about 16-17 dacoits successfully decamped with cash, H
274 SUPREME COURT REPORTS [2008] 13 S.C.R.

A jewellery, ornaments, firearms etc. During the course of
commission of dacoity, Hiralal, Mahesh Chandra and Smt.
Mahabiria sustained injuries of whom Hiralal died.
While dacoity was in operation, the matter was reported
orally at police station, Hathgaon by village chowkidar Ram
B Ratan (P.W. 3) on the same day at 1.30 P.M. wherein none was
~

named. Head Moharrir Fateh Bahadur Singh (P.W. 1) recorded
the report in chick register and registered case under Section
395/397 IPC. Station Officer Yadram Verma (P.W. 29) took up
investigation and he immediately proceeded to the scene of
c occurrence. He met injured Hiralal, Mahesh Chandra and Smt.
Mahabiria on the way. He got the said injured sent for their
medical examination with "chithi majroobi''. When the injured
persons were being taken to hospital, Hiralal succumbed to his
injuries. The constable who was escorting the injured then gave
D information at police station about the death of Hiralal,
whereupon case was converted to one under Section 396 IPC.
When the investigating officer reached the place of
occurrence, Har Parsed (P.W. 2) handed over to him a list of
stolen articles and also a report giving out details of commission
E
of dacoity in his house wherein he named three persons, namely
respondentAwdhesh, Ram Rattan alias Jhallar and Babu Singh.
The investigating officer recorded the statements of witnesses
on 10.5.1973, arrested named as well as some unknown
persons during the course of investigation and some stolen
F articles were alleged to have been recovered from respondent ~

Awdhesh and other accused. On completion of investigation
charge sheet was submitted.
3. Since the accused persons abjured guilt they were put
on trial. It is to be noted that originally three persons were named
G
as accused and reference was made to 9 unknown persons.
One of them died during trial, ar.d one died during pendency of
the appeal before the High Court. Respondent was accused ..
No.4. In order to further its version prosecution examined 29
witnesses. Placing reliance on testimony of Har Prasad (PW-2),
H
STATE OF U.P. v. AWDHESH 275
..... [DR. ARIJIT PASAYAT, J.]

~ Ram Lakhan (PW-7), Smt. Sheo Sakhi (PW-11) and Smt. Ram A
Rati (PW-12) the trial Court directed conviction as noted above.
4. Stand of the appellant before the High Court was that
accused persons were admittedly on inimical terms with Har
... Prasad (PW-2) and it was a specific case that accused Babu
Singh had absconded and did not face trial. He was on inimical B
terms with the deceased and PW-2. Respondent Awdhesh
happened to be brother in law of Babu Singh. The trial Court
held that the accusations have been established. In appeal
... before the High Court it was noted that the enmity aspect was
lost sight of by the Trial Court. In any event, for a long time no c
~

-I
. witness supposedly spoke about accused Awdhesh. Though
the village Chowkidar, Ram Ratan (PW-3) reported the matter
to the police station on the basis of which Crime case No.30
-I was registered, no one was named as accused and the case
"1
.. was registered against unknown persons. Only when a written D
report was submitted by Har Prasad (PW-2) to the investigating
officer, name of respondent was indicated alongwith Babu Singh
and Jhallar Singh. It was pointed out that though PW-2 was
...
~
shouting that three named persons were committing dacoity, in
the report submitted by PW-3 the names were not given. E
-.I
Reference was also made to the evidence of Ram Lakhan
(PW-4) who admitted that he never mentioned the names of the
three persons whose names appeared in the report given by
PW-2. With reference to the evidenc~ of Smt. Sheo Sakhi, the
1
~
.. High Court noticed that she did not know Awdesh, yet stated as F
if she was acquainted with him. Her statement in the cross
examination was highlighted by the High Court. Similar was the
position regarding Smt. Ram Rati (PW-12). The investigating
officer stated that when he was going to the place of occurrence,
he had met the deceased and two other persons who received
G
injuries in the occurrence. They were Mahesh Chandra and
Smt. Mahabiria. He had a talk with them and he sent them for
,.. medical examination. But till that time also the names of
Awdhesh, Babu Singh and Jhallar Singh were not disclosed.
Primarily, on these premises the High Court directed acquittal.
H
276 SUPREME COURT REPORTS [2008] 13S.C.R.
~

A 5. The High Court also referred to the fact that while some •
of the alleged dacoits covered their faces to conceal the identity; ~

the three named accused persons who were known did not try
to cover their faces.
6. Learned counsel for the appellant-State submitted that ,..
B the reasoning indicated by the High Court does not justify the
order of acquittal. Most of the reasonings are based on surmises
and conjectures. Particular reference is made to the evidence
of PW-3. The High Court found that in the report submitted by
PW-2 there was no reference to the three named accused
c persons.

7. It is pointed out that the witnesses on hearing about the
dacoity had rushed to the police station and had no occasion
to know the names of accused persons. The parameters for
dealing with an appeal against judgment of acquittal have been ·
D
laid down by this Court in several cases.
8. It would be appropriate to consider and clarify the legal
position first. Chapter XXIX (Sections 372-394) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code")
E 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.
F 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
G
extenso:
"378. Appeal in case of acquittal.-(1) Save as other11vise ...
provided in sub-section (2) and subject to the provisions
of sub-sections (3) and (5), the State Government may, in
H any case, direct the Public Prosecutor to present an appeal
STATE OF U.P. v. AWDHESH 277
[DR. ARIJIT PASAYAT, J.]

to the High Court from an original or appellate order of A
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 passed in any case in
j
which the offence has been investigated by the Delhi B
Special Police Establishment constituted under the
Delhi 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 c
also direct the Public Prosecutor to present an
appeal, subject to the provisions of sub-section (3),
to the High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2)
D
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
application made to it by the complainant in this E
behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an
appeal to the High Court.
(5) No application under sub-section (4) for the grant of
..... special leave to appeal from an order of acquittal F
shall be entertained by the High Court after the expiry
of six months, where the complainant is a public
servant, and sixty days in every other case, computed
from the date of that order of acquittal.
G
(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-
se_ction (2).
H
278 SUPREME COURT REPORTS (2008] 13 S.C.R.

A 9. Whereas Sections 379-380 cover special cases of
appeals, other sections lay down procedure to be followed by
appellate courts.
10. It may be stated that more or less similar provisions
were found in the Code of Criminal Procedure, 1898 (hereinafter
B referred to as "the old Code") which came up for consideration
before various High Courts, Judicial Committee of the Privy
Council as also before this Court. Since in the present appeal,
we have been called upon to decide the ambit and scope of the
power of an appellate court in an appeal against an order of
c acquittal, we have confined ourselves to one aspect only i.e. an
appeal against an order of acquittal.

11. Bare reading of Section 378 of the Code (appeal in
case of acquittal) quoted above, makes it clear that no
restrictions have been imposed by the legislature on the powers
D
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 and to reach
its own conclusions on such evidence. Both questions of fact
E and of law are open to determination by the High Court in an
appeal against an order of acquittal.

12. It cannot, however, be forgotten that in case of acquittal,
there is a double presumption in favour of the accused. Firstly,
F the presumption of innocence is available to him under the
)I.
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, tl1e presumption of his innocence is (

G certainly not weakened but reinforced, reaffirmed and
strengthened by the trial court.
,,..
13. 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. apprcpriate if we
H consider some of the leading decisions on the point.
STATE OF U.P. v. AWDHESH 279
~· [DR. ARIJIT PASAYAT, J.]

14. The first important decision was rendered by the A
Judicial Committee of the Privy Council in Sheo Swarup v. R.
Emperor (1934) 61 IA 398). In Sheo Swarup the accused were
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 B
(similar to Section 378 of the 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 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 c
been reached by hjm had there not been some perversity or
incompetence on his part. The High Court, however, declined
to accept the said view. It held that no condition was imposed
on the High Court in such appeal. It accordingly reviewed all the
evidence in the case and having formed an opinion of its weight D
and .reliability different from that of the trial Judge, recorded an
order of conviction. A petition was presented to His Majesty in
Council for leave to appealon 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
E
acquittal, an appellate court had the power to interfere with the
findings of fact recorded by the trial Judge. Their Lordships thought
it fit to clarify the legal position and accordingly upon the "humble
advice of their Lordships", leave was granted by His Majesty.
The case was, thereafter, argued. The Committee considered
..... the scheme and interpreting Section 417 of the Code (old Code) F
observed that there was no indication in the Code of any limitation
or restriction on the High Court in exercise of powers as an
Appellate Tribunal. Tile Code a_lso made no distinction as regards
powers of the High Court in dealing with an appeal against acquittal
and an appeal against conviction. Though several authorities G
were cited revealing different views by the High Courts dealing
with an appeal from an order of acquittal, the Committee did not
think it proper to discuss all the cases.
15. Lord Russel summed up the legal position thus:
H
280 SUPREME COURT REPORTS [2008] 13 S.C.R.
.,,.
A "There is, in their opinion, no foundation for the viev1:,
apparently supported by the judgments of some coU1is in
India, that the High Court has no power or jurisdiction to
reverse an order of acquittal on a matter of fact, except in
cases in which the lower court has 'obstinately blundered',
or has 'through incompetence, stupidity or perversity'
B
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."
c
16. 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
D conclusion that upon that evidence the order of acquittCJi
should be reversed. No limitation should be placed upon
that power, unless it be found expressly stated in the Code "
17. The Committee, however, cautioned appellate courts
and stated: (IA p.404)
E
"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
F 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) th.e 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
G a judge who had the advantage of seeing the witnesses.
To state this, however, is only to say that the High Cou:t
in its conduct of the appeal should and will act in
accordance with rules and principles wefl known and
i'ecognised in the administration of justice."
H (emphasis supplied)

:
STATE OF U.P. v. AWDHESH 281
[DR ARIJIT PASAYAT, J.]

18. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the A
Committee reiterated the above view in Shea Swarup (Supra)
and held that in an appeal against acquittal, the High Court has
full powers to review and to reverse acquittal.

19. So far as this Court is concerned, probably the first
decision on the point was Prandas v. State (Al R 1954 SC 36) 8
(though the case was decided on 14-3-1950, it was reported
only in 1954). In that case, the accused was acquitted by the
trial court. The Provincial Government preferred an appeal which
was allowed and the accused was convicted for offences
punishable under Sections 302 and 323 IPC. The High Court, C
for convicting the accused, placed reliance on certain
eyewitnesses.·

20. Upholding the decision of the High Court and following
the proposition of law in Sheo Swarup (supra), a six-Judge
0
Bench held as follows:
"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 ajudgmentof E
acquittal, unless the judgment is perverse or the
subordinate court has in some way or other misdirected
itself so as to produce a miscar~iage of justice."
(emphasis supplied)
F
21. In Surajpal Singh v. State (1952 SCR 193), a two-
Judge Bench observed that it was well established that in an
appeal under Section 417 of the (old) Code, the High Court
had full power to review the evidence upon which the order of
acquittal was founded. But it was equally well settled that the G
presumption of innocence of the accused was further reinforced
by his acquittal by the trial court, and the findings of the trial
court which had the advantage of seeing the witnesses and
hearing their evidence could be reversed only for very
substantial and compelling reasons.
H
282 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 22. 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 there were "no compelling reasons" for
B setting aside the order of acquittal and due and proper weight Jr
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
c 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".
23. Upholding the contention, this Court said:
D
"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
E appearing against him but only for very substantial and
compelling reasons."
(emphasis supplied)
24. lnAtleyv. State of UP (AIR 1955 SC 807) this Court said:
F
"In our opinion, it is not correct to say that unless the
appellate court in an appeal under Section 417, Criminal
Procedure Code came to the conclusion that the jud:.;r11ent
of acquittal under appeal was perverse it could not set
G
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
review the entire evidence and to come to its own ...
conclusion, of course, keeping in view the well-established
H rule that the presumption of innocence of the accused is
STATE OF U.P. v. AWDHESH 283
Mt· [DR. ARIJIT PASAYAT, J.]

not weakened but strengthened by the judgment of acquittal A
passed by the trial court which had the advantage of .
observing the demeanour of witnesses whose evidence
have been recorded in its presence.
It is also well settled that the court of appeal has as wide
powers of appreciation of evidence in an appeal against B
an order of acquittal as in the case of an appeal against an
order of conviction, subject to the riders that the presumption
of innocence with which the accused person starts in the
trial court continues even up to the appellate stage and that
the appellate court should attach due weight to the opinion c
of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary conclusion,
the judgment cannot be said to have been vitiated."
D
(emphasis supplied)
25. In Aher Raja Khima v. State of Saurashtra (1955) 2
SCR 1285) the accused was prosecuted under Sections 302
and 447 IPC. He was acquitted by the trial court but convicted
by the High Court. Dealing with the power of the High Court E
against an order of acquittal, Bose, J. speaking for the majority
(2:1) stated: (AIR p. 220, para 1) "It is, in our opinion, well settled
that it is not enough for the High Court to take a different view
of the evidence; there must also be substantial and compelling
reasons for holding _that the trial court was wrong."
F
(emphasis supplied)
26. Jn 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
in applying the principles laid down by the Privy Council and G
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: H
284 SUPREME COURT REPORTS [2008] 13 S.C.R.

A "Th is 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
B 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
c 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,
(1) 'substantial and compelling reasons', (i1) 'good and
D
sufficiently cogent reasons', and (iii) 'strong reasons' are
not intended to curtail the undoubted power of an appellate
court in an appeal against acquittal to review the entire
evidence and to come to its own conclusion; but in doing
so it should not only consider every matter on record having
E 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 that the acquittal was not justified."
F
27.Again, in MG Agarwal v. State of Maharashtra (1963) 2
SCR 405, the point was raised before a Constitution Bench of this
Court. Taking note of earlier decisions, it was observed as follows:
"17. In some of the earlier decisions of this Court, however,
G in emphasising the importance of adopting a cautious
approach in dealing with appeals against acquittals, it
was observed that the presumption of innocence is
reinforced by the order of acquittal and so, 'the findings of
the trial court which had the advantage cf seeing the
H witnesses and hearing their evidence can be reversed
STATE OF U.P. v. AWDHESH 285
-"\ [DR. ARIJIT PASAYAT, J.]

only for very substantial and compelling reasons': vide A
Surajpal Singh v. State (1952SCR193). Similarly in Ajmer
Singh v. State of Punjab (1953 SCR 418), it was observed
that the interference of the High Court in an appeal against
the order of acquittal would be justified only if there are
'very substantial and compelling re;:isons to do so'. In some B
other decisions, it has been stated that an 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
observations were not intended to lay down a rigid or
inflexible rule which should govern the decision of the High
c
Court in appeals against acquittals. They were not
intended, and should not be read to• have intended to
introduce an additional condition in clause (a) of Section
423(1) of the Code. All that the said observations are
intended to emphasize is that the approach of the High D
Court in dealing with an appeal against acquittal ought to
be cautious because as Lord Russell observed in Sheo
Swarup the presumption of innocence in favour of the
accused 'is not certainly weakened by the fact that he has
been acquitted at his trial'. Therefore, the test suggested E
by the expression 'substantial and compelling reasons'
should not be construed as a formula which has to be
rigidly applied in every case. That is the effect of the recent
decisions of this Court, for instance, in Sanwat Singh v.
-~' State of Rajasthan and Harbans Singh v. State of Punjab F
(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) G
28. 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
H
286 SUPREME COURT REPORTS [2008] 13 S.C.R.
-
A 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
B homage our jurisprudence owes to individual liberty constrains
the higher court not to upset the holding without very convincing
reasons and comprehensive consideration."
29. Putting emphasis on balance between importance of
individual liberty and evil of acquitting guilty persons, this Court
C observed as follows:
"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 social 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 a public
E accountability. The cherished principles or golden thread
of proof beyond reasonable doubt which runs thro' 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 thousand guilty
F 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-heartedly, as a
G 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 turn leads to a public
H demand for harsher legal presumptions against indicted
STATE OF U.P. v. AWDHESH 287
'~ [DR. ARIJIT PASAYAT, J.]

'persons' and more severe punishment of those who are A
found guilty. Thus, too frequent acquittals of the guilty may
lead to a ferocious penal law, eventually eroding the judicial
protection of the guiltless. For all these reasons it is true
to say, with Viscount Simon, that 'a miscarriage of justice
1 may arise from the acquittal of the guilty no less than from B
the conviction of the innocent.. ..' In short, ourjurisprudential
enthusiasm for presumed innocence must be moderated
by the pragmatic need to make criminal justice potent
and realistic. A balance has to be struck between chasing
chance possibilities as good enough to set the delinquent c
free and chopping the logic of preponderant probability
to punish marginal innocents.''
(emphasis supplied)
30. lnK. GopalReddyv. StateofA.P(1979) 1 SCC355, the
D
Court was considering the power of the High 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 E
'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 F
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 Shea
Swarup v. R. Emperor and reaffirmed those principles.
G
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 Shea Swarup case. Occasionally
H
288 SUPREME COURT REPORTS [2008] 13 S.C.R.
~"'
A phrases like 'manifestly illegal', 'grossly unjust', have beer.
used to describe the orders of acquittal which warrant
interference. But, such expressions have been used more
as flourishes of language, to emphasise the reluctance of
the appellate court to interfere with an order of acquittal
B than to curtail the power of the appellate court to review r
the entire evidence and to come to its own conclusion. In
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 that to
the principles laid down in Sanwat Singh case may be
c added the further principle that 'if two reasonable
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
D jurisprudence that the accused is entitled to the benefit of
any reasonable doubt. If two reasonably probable and 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
E account. To entitle an accused person to the benefit of a
doubt arising from the possibility of a duality of views, 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
F of another view will not entitle the accused to claim the ~

benefit of any doubt. It is, therefore, essential 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."
G (emphasis supplied)
31. In Ramesh Babula/ Doshi v. State of Gujarat (1996)
9 SCC 225, this Court said:
"While sitting in judgment over an acquittal the appellate
H court is first required to seek an answer to the question
STATE OF U.P. v. AWDHESH 289
I~ [DR. ARIJIT PASAYAT, J.]

whether the findings of the trial court are palpably wrong, A
manifestly erroneous or demonstrably unsustainable. If the
appellate court answers the above question in the negative
the order of acquittal is not to be disturbed. Conversely, if
the appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in view of B
any of the above infirmities it can then-and then only~
reappraise the evidence to arrive at its own conclusions."
32. In Allarakha K. Mansuri v. State of Gujarat (2002) 3
sec 57, referring to earlier decisions, the Court stated:
c
"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
D
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 E
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."
_>( F
33. In Bhagwan Singh v. State of MP (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 ha~e disturbed the findings of fact of the trial
-.;
court even if that view was not correct, this Court observed:
G
"7. We do not agree with the submissions of the learned
counsel for the appellants that under Section 378 of the
~
Code of Criminal Procedure the High Court could not
1
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 H
STATE OF U.P. v. AWDHESH 291
; ) [DR. ARIJIT PASAYAT, J.]

the High Court whil~ reversing an order of acquittal to A
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."
1
35. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12
B
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.
c
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
D
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 rnay
arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible E
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
->/,
any offence or not" . F

. 36. Again in Kal/u 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 G
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 H

..
292 SUPREME COURT REPORTS [2008] 13 S.C.R.
k '

~. 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 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)

C) 37. From the above decisions, in Chandrappa and Ors.
11. State of Karnataka (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:

(1) An appellate court has full power to review,
[DJ reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before
E it may reach its own conclusion, both on questions of
fact and of law.
~
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
Fl "very strong circumstances", "distorted conclusions", )l

"glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of "flourishes of language" to emphasise
the reluctance of an appellate court to interfere with
G
acquittal than to curtail the power of the court to review
·1 •.
the evidence and to come to its own conclusion.
~
' \ (4) An appellate court, however, must bear in mind that
t in case of acquittal, there is double presumption in
H favour of the accused. Firstly, the presumption of

.. ~
STATE OF U.P. v. AWDHESH 293:
[DR. ARIJIT PASAYAT, J.]

innocence is available to him under the fundamental ~
principle of criminal jurisprudence that every persom
shall be presumed to be innocent unless he is proved~
guilty by a competent court of law. Secondly, th~i
accused having secured his acquittal, the;
presumption of his innocence is further reinforcedG ijj
reaffirmed and strengthened by the trial court. ri
. 1i
(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. ~
1
38. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the evidentia\! ·
1
standard of pr6of beyond reasonable doubt. Though thiS
standard is a higher standard, there is, however, no absolute' ~
standard. What degree of probability amounts to"proof' is an1
1
exercise particular to each case. Referring to the
interdependence of evidence and the confirmation of one piecer
of evidence by ·another, a learned author says [see "ThJ
Mathematics of Proof II": Glanville Williams, Criminal La.;}
Review, 1979, by Sweet and Maxwell, p.340 (342)]: ,' ~=
'I
"The simple multiplication rule does not apply if the,
• separate pieces of evidence are dependent. Two events1
are dependent when they tend to occur together, and the
evidence of such events may also be said to be dependent. F-i
In a criminal case, different pieces of evidence directed tq'
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 alleged:
confession, and doubt whether to infer guilt from the fact
that the defendant fled from justice. But since it is generally,- §
guilty rather than innocent people who make confessionsJ
and guilty rather than innocent people who run away, the:
two doubts are not to be multiplied together. The one piece
of evidence may confirm the other." l
fl
294 SUPREME COURT REPORTS [2008] 13 S.C.R.
k t

A 39. 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 substantial doubts as to the guilt of the accused persons
B 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 in the case.
C 40. 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
constitute proof beyond reasonable doubt. There is an
unmistakable subjective element in the evaluation of the degrees
D of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense and,
ultimately, on the trained intuitions of the Judge. While the
protection given by the criminal process to the accused persons
is not to be eroded, at the same time, uninformed legitimization
E of trivialities would make a mockery of administration of criminal
justice. This position was illuminatingly stated by Venkatachaliah,
J. (as His Lordship then was) in State of UP v. Krishna Gopal
(1988 (4) sec 302).
41. The above position was highlighted in Krishnan and
F Anr. v. State represented by Inspector of Police (2003 (7) SCC
56).
42. In the present case, though the judgment is not happily
worded and some of the reasonings are not legally supportable
G but the ultimate conclusion is a possible viev·1. That being so,
we decline to interfere in this appeal which is disrn:ssed. The
bail bond executed in the present case by the respondent shall
stand discharged. ,,
1

R.P. Appeal dismissed.
H

'