Paragraph numbers below are the court’s original numbering, recovered from the source text.
25. Yet in another leading decision in Shivaji Sahabrao r ! Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no jurisdictional limitation on the pow- r ers of appellate court. "In law there are no fetters on the plenary power of the appellate court to review the whole evidence on ~. -j which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, r- by the weighty thoughtthat the rebuttable innocence attributed to the accused having been converted into an acquittal the horn- age our jurisprudence owes to individual liberty constrains the higher court notto upset the holding without very convincing rea- sons and comprehensive consideration."
26. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court 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 the expense of social defence and to the soothing -..i.,. … 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 A 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 8 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 c 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 D demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are 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 may arise from the acquittal of the guilty no less than from the conviction of the innocent….' In short, our jurisprudential 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 F chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents." (emphasis supplied)
27. In K. Gopal Reddyv. State of A.P(1979) 1SCC355, the Court was considering the power of the High Court against an order >–4 of acquittal under Section 378 of the present Code. After consider- ing the relevant decisions on the point it was stated as follows: "9. The principles are now well settled. At 0ne time it was H ,…,_ thought that an order of acquittal could b.e set aside for _, 'substantial and compelling reasons·· only and courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and .the search ·for them were abandoned as a result of the pronouncement of this ).– Court in Sanwat Singh y. 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 c Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this_ Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Shea Swarup case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been_used more as flourishes of language, to emphasise the reluctance of .._ the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own ponclusion. 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 added the further principle that 'if two reasonable .I.._ 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 ~-4. 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 A 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 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." (emphasis supplied) c
28. In Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said: "While sitting in judgment over an acquittal the appellate 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 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 E 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."
29. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, referring to earlier decisions, the Court stated: _) "7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial G court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast "h~ 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. H Probable view taken by the trial court which may not be """' disturbed in the appeal is such a view which is based …. upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."
30. In Bhagwan Singh v. State of M.P (2002) 4 SCC 85, .)>-..- the trial court acquitted the accused but the High Court con- victed them. Negativing the contention of the appellants that the c High Court could not have disturbed the findings of fact of 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 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 –t. ~ position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court 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 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 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 innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the SURAJ SINGH v. STATE OF U P. )L.. [DR. ARIJIT PASAYAT, J.] High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the ac~used has committed any offence or not".
31. In Harijana Thirupala v. Public Prosecutor, High Court of A.P (2002) 6 SCC 470, this Court said: ·.._.j "12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other c view is possible, because with the passing of an order of 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 D have proceeded to record a conviction; a duty is cast an 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 judgmer:it will suffer from serious infirmity."
32. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court observed: "21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused …… ~ and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice 'is prevented. A miscarriage of justice which may H c arise from acquittal of the guilty is no less, than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to 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".
33. Again in Kal/u v. State of M.P (2006) .10 SCG 313, this Court stated: . "8, While deciding an appeal against acquittal, th~ power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. Ho"Yever, 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 and the view taken is reasonable and plausible. It will not reverse the deeision of the trial court merely .because a different view Is possible. The appellate court will also bear in 'mind that the.re is a presumption of innocence in favour ofthe accus.ed 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)
34. From the above decisions, in Chandrappa and Ors. v. State of Kamataka (2007 (4) SCC 415), the following ge·neral 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, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1913 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of A fact and of law. (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 phraseologies are more in d 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 c the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental —–1 principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is provec;J guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced., reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
35. A person has, no doubt, a profound right not to be con- victed of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this stan- dard is a higher standard, there is, however, no absolute stan- dard. What degree of probability amounts to "proof' is an exer- cise particular to each case. Referring to the interdependence -··- of evidence and the confirmation of one piece of evidence by another, a learned author says [see "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]: "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of e~idence 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 alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally c 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 one piece of evidence may confirm the other." ._
36. Doubts would be called reasonable if they are free ' ,. D from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasqnable doubt, it must _,_;_.- be free from an overemotional response. Doubts must be ac- tual and substantial doubts as to the guilt of the accused per- sons arising from the evidence, or from the lack of it, as op- posed· 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.
37. The concepts of probability, and the degrees of it, can- not obviously be expressed in terms of units to be mathemati- . cally 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 of probability and the quantum of proof. Forensic probability must, in the last analy- G sis, rest on a robust common sense and, ultimately, on the trained in.tuitions of the Judge. While the protection given by the crimi- nal 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 H was illuminatingly stated by Venkatachaliah, J. (as His Lord- ship then was) in State of UP v. Krishna Gopal (1988 (4) sec A 302).
38. The above position was highlighted in Krishnan andAnr. v. State represented by Inspector of Police (2003 (7) SCC 56).
39. So far as discrepancy between ocular evidence and .._J medical evidence is concerned, this Court in Kamaljit Singh v. State of Punjab (2003 (12) SCC 155) observed as under: "It is trite law that minor variations between medical evidence and ocular evidence do not take away the c primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat (1983 (2) SCC 174). The position was illuminatingly and exhaustively reiterated in State of UP v. Krishna Gopal (1988 (4) SCC 302). When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible E evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference.
40. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would ,.. ' be erroneous to accord undue primacy to the hypothetical an- swers of medical witnesses to exclude the eyewitnesses' ac- count which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". G
41. It is trite that where the eyewitnesses' account is found -4 credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the im- portance and primacy of the quality of the trial process. Eyewit- nesses' account would require a careful independent assess- ment and evaluation for its credibility which should not be ad- versely prejudged making any other evidence, including medi- cal evidence, as the sole touchstone for the test of such cred- ibility. The evidence must be tested for its inherent conl)istency B and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their per- formance in the witness box; their power of observation etc. Then the probative value of such evidence .becomes eligible to C be put into the scales for a cumulative evaluation.
42. In the instant case, the trial Court erroneously concluded that the medical evidence was at variance with the ocular evi- dence. The oral testimony is not at variance with the medical evidence as rightly observed by the High Court.
43. This Court in Ula Ram (0) thr. Ou/i Chand v. State of Haryana and Anr. (JT 1999 (6) SC 27 4) held that it was imma- terial whether one or two gunshots were fired. Such contradic- tion does not travel to the root of the nature of the offence. The I E discrepancy in ocular and medical evidence vis-a-vis distance ( cannot affect the credibility of evidence. In §fate of UP v. Suhar 1 Singh (AIR 1987 SC 191) it was observed that when there is direct evidence of eye witness available the inconsistency re- lating to distance from which the gunshots were fired is of no consequence when the prosecution evidence pertaining to as- sault by guns and pistol substantially tallied with the medical evidence. The present case, belongs to that category. Addition- ally, there was no discrepancy pointed out in the evidence of eye witnesses. Merely because PW-1 and PW-2 were close G relatives of the deceased, that cannot be a ground to affect cred- ibility of their eviden'.ce. Looked at from any angle there is no merit in the appeal ~hich is accordingly dismissed. R.P. Appeal dismissed.