Holding

The High Court was correct in holding that Gajanand acted in private defence and the appeals are dismissed.

Summary

The case arose from the murder of Devi Lal, who was killed by Gajanand with an axe while a dispute over grazing goats escalated. The trial court convicted Gajanand under s.302 IPC and sentenced him to life imprisonment, but the Rajasthan High Court acquitted him, accepting his claim of exercising the right of private defence. The Supreme Court examined whether the facts justified a claim of private defence, the burden of proof under s.105 Evidence Act, and the scope of appellate power under s.378 CrPC to review an acquittal. It held that the High Court correctly found that Gajanand acted in private defence, that the burden of proof lies on the accused to show pre‑ponderance of probability, and that an appellate court may fully re‑appreciate evidence in an appeal against acquittal, subject only to the presumption of innocence. Consequently, the Supreme Court dismissed the appeals, affirming the acquittal.

Issues considered

The accused's conduct amounted to a lawful exercise of the right of private defence under s.96‑106 IPC.
Whether the burden of proof for a private‑defence plea rests on the accused under s.105 Evidence Act.
The standard of proof required to overturn a conviction or uphold an acquittal (reasonable doubt).
The extent of the High Court's power to review evidence and set aside an order of acquittal under s.378 CrPC.
The applicability of sections 100‑101 IPC in extending private defence to causing death.

Legislation cited

Code of Criminal Procedure, 1973s. 372, s. 373, s. 374, s. 375, s. 376, s. 377, s. 378
Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 106, s. 149, s. 302, s. 96, s. 97, s. 98, s. 99

Subjects

private defencemurderappeal against acquittalburden of proofreasonable doubtIPC sections 96-106Evidence Act s.105CrPC s.378appellate jurisdiction

Judgment

[2008] 11 S.C.R. 607

.'
~-
SATYA NARAIN YADAV A
v
GAJANAND AND ANR.
(Criminal Appeal No. 305 of 2001)
AUGUST 1, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

.. SHARMA, JJ.]

Penal Code, 1860; Ss.96-106; S.302 r/w s.149/Evidence
Act, 1872; s. 105: C
Assault and murder- Exercise of right of private defence
- Trial Court convicted accused for committing offence pun-
ishable under s. 302 /PC and sentenced to life imprisonment
- Reversed by High Court accepting the stand of accused
that blows given by him were in exercise of right of private de- D
fence - Correctness of - Held: Correct - No doubt, an ac-
cused has profound right not to be convicted for an offence
which is not established by evidential standard of proof be-
yond reasonable doubt - Doubts are reasonable if they are
free from a zest for abstract speculation - Law can not afford E
any favourite other than truth - While protection given by crimi-
nal process to accused not to be eroded, at the same time,
uninformed legitimation of trivialities would make mockery of
criminal justice - On facts, the High Court has rightly held that
the accused, in exercise of right of private defence, inflicted F
injuries on the deceased - Right of private defence - Exer-
cise of
Code of Criminal Procedure, 1973 - Section 378 - Ap-
peal against acquittal - Ingredients - Discussed.
\ G
Evidence:
-,. Acquittal - Presumption in favour of accused - Dis-
..J cussed.

607 H

'·
~
608 SUPREME COURT REPORTS [2008] 11 S.C.R.
--f
...£.
A Power of appellate Court/High Court - Held: No restric-
tion has been imposed by the legislature in dealing with ap- "':"
peal against acquittal - High Court has full power to re-appre- '
ciate, review and re-consider the evidence at large and the
material on which order of acquittal is founded to reach its
B conclusion - Both questions of fact and of law are open to ~
determination by the High Court.
According to the prosecution, on the fateful day, ·~
when PW-13-the informant along with his brother, the ~
deceased, was working in the field, accused-respondent p
c No.1 and others attacked his brother on his head, as a ..
result of which he got injured and later succumbed to the "'
injuries. An FIR was lodged in the Police Station. After
completion of the investigation, charge-sheet was filed
by the Police against the accused for committing the of- )

0 fence punishable u/s.302 IPC. Trial Court found the ac-
cused guilty of committing the murder of brother of the }.. ,.
informant and sentenced him to undergo rigorous impris-
onment for life. The High Court accepting the stand of the i>

accused that he gave blows on the deceased in exercise
E of right of private defence acquitted him. Hence the
present appeals.
..
Appellant-informant contended that the trial Court
has erroneously held that the accused were exercising
the right of private defence.
F ~
Respondent No.1 submitted that when injury was
caused by lathi not only on the accomplice of 'G' but also
to 'G' - respondent, it cannot be said that they were not
exercising the right of private defence.
G Dismissing the appeal, the Court
HELD: 1.1 Section 96 IPC does not define the expres- -(

sion 'right of private defence'. It merely indicates that noth-
ing is an offence which is done in the exercise of such right.

H
Whether in a particular set of circumstances, a person legiti·· )•
t
SATYA NARAIN YADAV v. GAJANAND &ANR. 609

. ~ mately acted in the exercise of the right of private defence is
a question of fact to be determined on the facts and circum-
stances of each case. No test in the abstract for determin-
A

ing such a question can be laid down. In determining this
question of fact, the Court must consider all the surround-
ing circumstances. (Para - 9) [917-G-H; 918-A-B] B
1.2 Under Section 105 of the Indian Evidence Act,
1872, the burden of proof is on the accused, who sets up
the plea of self-defence, and, in the absence of proof, it is
,.' not possible for the Court to presume the truth of the plea
1 of self-defence. The Court shall presume the absence of c
such circumstances. (Para - 9) [618-C-D]
" 1.3 Where the right of private defence is pleaded, the
defence must be a reasonable and probable version sat-
isfying the Court that the harm caused by the accused
D
was necessary for either warding off the attack or for fore-

.. ~.
stalling the further reasonable apprehension from the side
of the accused. The burden of establishing the plea of
self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material on E
record. (Para - 9) [618-F-G]
Munshi Ram and Ors. v. Delhi Administration AIR (1968)
SC 702; State of Gujarat v. Bai Fatima AIR (1975) SC 1478;
State of UP v. Mohd. Musheer Khan AIR (1977) SC 2226; F
Mohinder Pal Jolly v. State of Punjab AIR (1979) SC 577 and
Salim Zia v. State of U.P. AIR (1979) SC 391 - relied on.
1.4 A plea of right of private defence cannot be based
on surmises and speculation. While considering whether
the right of private defence is available to an accused, it G
is not relevant whether he may have a chance to inflict
severe and mortal injury on the aggressor. In order to find
whether the right of private defence is available to an ac-
'r
_,' cused, the entire incident must be examined with care and
viewed in its proper setting. (Para - 11) [619-F] H
610 SUPREME COURT REPORTS [2008] 11 S.C.R. ~0--

~
A 1.5 To ·claim a right of private defence extending to
~
~

vol.untary causing of death, the accused must show that I

there were circumstances giving rise to reasonable
grounds for apprehending that either death or grievous
hurt would be caused to him. The burden is on the ac-
B cused to show that he had a right of private defence which
extended to causing of death. Sections 100 and 101, IPC
define the limit and extent of right of private defence. (Para ~ .
- 11) [919-A-B]
/

1.6 The right of private defence commences, as soon "
c as a reasonable apprehension of danger to the body ~
.~
arises from an attempt, or threat, to commit the offence,
although the offence may not have been committed but r'
not until there is that reasonable apprehension. The right
lasts so long as the reasonable apprehension of the dan-
D ger to the body continues. (Para - 12) [629-C-D]
Jai Dev. v. State of Punjab AIR (1963) SC 612 - relied
on. ... ,,.,
1.7. In order to find whether right of private defence
E is available or not, the injuries received by the accused,
the imminence of threat to his safety, the injuries caused •
by the accused and the circumstances whether the ac- [.._
;

cused had time to have recourse to public authorities are )

all relevant factors to be considered. (Para - 13) [629-F]
F Biran Singh 11. State of Bihar AIR (1975) SC 87; Wassan
Singh v. State of Punjab (1996) 1 SCC 458 and Sekar alias
)..
Raja Sekharan v. State represented by Inspector of Police,
TN. (2002 (8) sec 354 - relied on. ·
1.8 Due weightage has to be given to, and hyper tech-
G
nical approach has to be avoided in considering what
happens on the spur of the moment on the ·spot and keep-
ing in view normal human reaction and conduct, where
~
self-preservation is .the paramount consideration. But, if }-
\
the fact situation shows that in the guise of self-preserva-
H
. SATYA NARAIN YADAV v. GAJANAND &ANR 611

~ tion, what really has been done is to assault the original A
aggressor, even after the cause of reasonable apprehen-
,.; sion has disappeared, the plea of right of private-defence
can legitimately be negatived. The Court dealing with the
plea has to weigh the material to. conclude .whether the
plea is acceptable. It is essentially a finding of fact. (Para B
- 14) [621-C-E]
Buta Singh v. The State of Punjab AIR (1991) SC 1316 -
relied on.
1.9 The right of self-defence is a very valuable right, c
serving a social purpose and should not be construed
narrowly. Situations have to be judged from the subjec-
tive point of view of the accused concerned in the sur-
rounding excitement and confusion of the moment, con-
fronted with a situation of peril and not by any micro-
D
scopic and pedantic scrutiny. In adjudging the question
as to whether more force than was necessary was used
in the prevailing circumstances on the spot it would be
inappropriate, as held by this Court, to adopt tests by de-
tached objectivity which would be so natural in a Court
room, or that which would seem absolutely necessary to E
a perfectly cool bystander. The person facing a reason-
able apprehension of threat to himself cannot be expected
to modulate his defence step by step with any arithmeti-
cal exactitude of only that much which is required in the
thinking of a man in ordinary times or under normal cir- F
cumstances. (Para - 15) [621-E-H; 622-A]
Vidhya Singh v. State of M.P AIR (1971) SC 1857 - re-
lied on.
Russel on Crime, 11 1h Edition Volume I at p. 49 - re- G
ferred to.
1.10 The right of private defence is essentially a de-
..,, tensive right circumscribed by the governing statute i.e.
=I the IPC, available only when the circumstances clearly
H
612 SUPREME COURT REPORTS [2008] 11 S.C.R.

A justify it It should not be allowed to be pleaded or availed
as a pretext for a vindictive, aggressive or retributive pur-
pose of nffence. It is a right of defence, not of retribution,
expected to repel unlawful aggression and not as retalia-
tory measure. While providing for exercise of the right;
B care has been taken in IPC not to provide and has not
devised a mechanism whereby an attack may be a pre-
tence for killing. A right to defend does not include a right
to launch an offensive, particularly when the need to de-
fend no longer survived. (Para - 17) [622-E-F]
C V Subramani and Anr vs. State of Tamil Nadu (2005)
10 sec 358 - relied on.
2.1 Bare reading of Section 378 of the Code makes it
clear that no restrictions have been imposed by the legis-
0 lature 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 and to reach its own con-
• clusions on such evidence. Both questions of fact and of
E law are open to determination by the High Court in an
appeal against an order of acquittal. (Para - 22) [624-F-G]
2.2 In case of acquittal, there is a double presump-
tion in favour of the accused. Firstly, the presu!Tiption of
F innocence is available to him under the fundamental prin-
ciple 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 inno-
G cence is certainly not weakened but reinforced, reaffirmed
and strengthened by the trial court. Though the above
principles are well established, a different note was struck
in several decisions by various High Courts and even by
this Court. (Paras - 23 & 24) [624-H; 625-A-C]
H Shea Swarup v. R. Emperor (1934} 61 IA 398; Nur Mohd.
SATYA NARAli'J YADAV v. GAJANAND & ANR. 613

>-- v. Emperor AIR (1945) PC 151; Prandas v. State AIR (1954) A
SC 36; Surajpal Singh v. State (1952) SCR 193; Ajmer Singh
.....-
=;>"'
v. State of Punjab (1953) SCR 418; Atley v. State of UP AIR
(1955) SC 807; Aher Raja Khima v. State of Saurashtra (1955)
2 SCR 1285; Sanwat Singh v. State of Rajasthan (1961) 3
SCR 120; M. G. Agarwal v. State of Maharashtra (1963) 2 SCR B
405; Shivaji Sahabrao Bobade v. State of Maharashtra (1973)
2 sec 793; K. Gopal Reddy v. State of A.P (1979) 1 sec
355; Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC
225; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC
57; Bhagwan Singh v. State of MP (2002) 4 SCC 85; Harijana c
Thirupala v. Public Prosecutor, High Court of A. P (2002) 6
SCC 470; Ramanand Yadav v. Prabhu Nath Jha (2003) 12
sec 606 and Kallu v. State of MP (2006) 10 sec 313 -
relied on.
3.1 A person has, no doubt, a profound right not to D
be convicted of an offence which is not established by
the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, how-
ever, no absolute standard. What degree of probability
amounts to "proof" is an exercise particular to each case. E
(Para - 49) [640-A-B]
Criminal Law Review, 1979, by Sweet and Maxwell,
p.340 - referred to.
3.2 Doubts would be called reasonable if they are free F
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 arising from the evidence,
G
or from the lack of it, as opposed to mere vague appre-
hensions. 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 evi-
dence in the case. (Para - 50) [640-C-G]
H
614 SUPREME COURT REPORTS [2008] 11 S.C.R.

A , 3.3 The concepts of probability, and the degrees of -1
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
B degrees of probability and the quantum of proof. Foren-
s_ic probabili~y m,ust, in the last analysis, rest on a robust
common sense and, ultimately, .on the trained _intuiti9ns
of the Judge. While the protection given by the criminal
process to the accused persons is not to be eroded, at
c the same ti.me, uninformed legitimization of trivialities
woµ19 make a mockery of administration of criminal jus-
tice. (Para - 51) [640-H; 641-:A-C]
State of UP v. Krishna Gopal (1988) 4 SCC 302 and
Krishnan and Anr. v. State represented by Inspector of Police
D (2003) 7 sec 56 - relied on.
4. On facts, right of private defence was available to
accused-respondent No.1 as rightly held by the High )

Court. (Para - 53) ·[641-D-E]

E · Case Law Reference
AIR (1968) SC 702; Relied on Para - 9
AIR (1975) SC 1478;
AIR (1977) SC 2226;
F AIR (1979) SC 577;
AIR (1979) SC 391
AIR (1963) SC 612 Relied on Para - 12
AIR (1975) SC 87; Relied on Para - 13
G
(1996) 1 sec 458;
(2002 (8) sec 354
·-
AIR (1991) SC 1316 Relied on Para - 14 _,,,
AIR (1971) SC 1857 Relied on Para - 15 t-

H
SATYANARAIN YADAV v. GAJANAND &ANR. 615

)-
(2005} 1o sec 358 Relied on Para - 18 A

........... (1934) 61 IA 398; Relied on Para - 25
AIR 1945 PC 151; Relied on Para - 29
AIR (1954) SC 36; Relied on Para - 30
(1952) SCR 193; Relied on Para - 32 B
'(
(1953) SCR 418; Relied on Para - 33
AIR (1955) SC 807; Relied on Para - 35
(1955) 2 SCR 1285; Relied on Para - 36
(1961) 3 SCR 120; Relied on Para - 37
c
(1963) 2 SCR 405; Relied on Para - 38
(1973) 2 sec 793; Relied on Para - 39
(1979) 1 sec 355; Relied on Para - 41
D
(1996} 9 sec 225; Relied on Para - 42

- .. (2002) 3 sec 57;
(2002) 4 sec 85;
Relied on
Relied on
Para - 43
Para - 44
(2002) 6 sec 470 Relied on Para - 45 E
(2003) 12 sec 606 Relied on Para - 46
(2006) 10 sec 313 Relied on Para - 47
(1988) 4 sec 302 Relied on Para - 51
(2003) 1 sec 56 Relied on Para - 52 F
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 305 of 2001
From the final Judgment and Order dated 10.8.2000 of
the High Court of Judicature for Rajasthan, Bench at Jaipur in G
D.B. Crl. Appeal No. 628/1999
(\nurag Sharma, Joseph Pookatt, Prashant Kumar,
"'" Aruneshwar Gupta, Kumar Kartikay, Ranvijay and Pratibha Jain
-=1 for the Appearing Parties.
H

1
616 SUPREME COURT REPORTS [2008] 11 S.C.R.

A The Judgment of the Court was delivered by -~

Dr. ARIJIT PASAYAT, J. 1. These two appeals are directed .............
against the judgment of a Division Bench of the Rajasthan High
Court directing acquittal of respondent Gajanand. One appeal
has been filed by the informant while the other has been filed by
B the State. The trial Court i.e. learned Additional Sessions Judge,
No.2, Bundi, Rajasthan, had convicted Gajanand for offence pun- )
ishable under Section 302 of the Indian Penal Code, 1860 (in
short the 'IPC') and sentenced to undergo rigorous imprison-
ment for life and to pay a fine of Rs.2,000/- with default stipula-
c tion. Co-accused Mahavir was, however, acquitted.
2. Background facts in a nutshell are as follows:
Kana (PW-13) lodged a First Information Report (Ext. P-
2) that whi!e he and his brother Devi Lal (hereinafter referred to
D as 'deceased') were working in the field, respondent No.1-
Gajanand and Mahavir objected to it and caused injury tq him. It
was stated that Gajanand was having an axe in his hand and he
> ,,
caused injuries to Devi Lal on his head. Earlier, a case under
Section 307 IPC was registered but on the death ·of Devi Lal
E charge under Section 302 IPC was added. After completion of
investigation, challans were submitted against Gajanand and
Mahavir.
3. As appears from the first- information report the infor-
mant had stated that while they were harvesting the wheat at
F the agricultural land in the morning two cow boys were grazing
. their goats. When loss was caused to the crops, Devi Lal asked
them not to do so. They insisted that goats would be grazed
and their names were Gajanand and Mahavir. When Devi Lal
further asked them not to do so, Gajanand gave a blow of axe
G on the left side of his head and the deceased fell down. There-
after, Mahavir assaulted with fists and the handle of the axe.
Thereafter both of them fled away. .t=

H
4. Charge sheet under Section 302 as well as under Sec-
tion 302 read with Section 149 was filed separately against
..,.,
....
SATYA NARAIN YADAV v. GAJANAND &ANR. 617
~ [DR. ARIJIT PASAYAT, J.]

-
/
accused persons. The accused persons pleaded innocence.
Sixteen witnesses were examined to further the prosecution
version. Kana (PW-13) was stated to be an eye-witness. The
A

Trial Court found Gajanand guilty of offence punishable under
Section 302 IPC. Mahavir, as noted above, was acquitted.
Present respondent preferred an appeal before the High Court B
-f
which by the impugned judgment set aside the conviction.
5. The accused had taken the stand during trial that when
Mahavir was trying to drive out the goat which entered into the

.. field of Devi Lal, he was given beatings by the deceased and
two lathi blows were inflicted on him. When Gajanand came to
his rescue, he was also addressed in contemptuous manner
and was given two lathi blows.
c

6. It was stated that by exercising the right of private de-
fence, two blows were given by Gajanand and, therefore, the
D
accused person cannot be convicted. The High Court has ac-
cepted this stand of the accused and held that the right of pri-
vate defence is available.
7. In support of the appeal filed by the State and the infor-
mant it is submitted that the trial Court has erroneously held that E
the accused were exercising the right of private defence.
8. Learned counsel for the accused-Gajanand submitted
that when injury was caused by lathi not only on Mahavir but
also to Gajanand-respondent, it cannot be said that they were
...( not exercising the right of private defence. In any event, accord- F
ing to him, if parameters of appeal against acquittal are kept in
view, no interference is called for.
9. Only question which needs to be considered is the al-
leged exercise of right of private defence. Section 96, IPC pro-
G
vides that nothing is an offence which is done in the exercise of
-...,- the right of private defence. The Section does not define the

•
I
expression 'right of private defence'. It merely indicates that
nothing is an offence which is done in the exercise of such right.
Whether in a particular set of circumstances, a person legiti-
H
618 SUPREME COURT REPORTS [2008] 11 S.C.R.

A mately acted in the exercise of the right of private defence is a
question offact to be determined on the facts and circumstances
of each case.· No test in the abstract for determining such a
question can be laid down. In determining this question of fact,
"""'

-
the Court must consider all the surrounding circumstances. It is
B not necessary for the accused to plead in so many words that
)
he acted in self-defence. If the circumstances show that the right
of private defence was. legitimately exercised, it is open to the
Court to consider such a plea. In a given case the Court can
consider it even if the accused has not taken it, if the same is
c available to be considered from the material on record. Under
Section 105 of the Indian Evidence Act, 1872 (in short 'the Evi-
dence Act'), the burden of proof is on the ac.cused, who sets up
the plea of self-def~nce, and, in the absence of proof, it is riot
possible'for the Court to presume the truth of the plea of self-
defence. The Court shall presume the absence of such circum-
D
stances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by-elic- >
iting necessary facts from the witnesses examined for.the pros-
ecution. An accused taking the plea of the right of private de-
fence is not necessarily required to call evidence; he can es-
E tablfsh his plea by reference to circumstances transpiring from
the prosecution evidence itself. The question in such a case
would be a question of assessing the true effect of the prosecu-
tion evidence, and not a question of the accused discharging
any burden. Where the right of private defence.is pleaded, the
F defence must be a reasonable and probable version satisfying
.~
the Court that the harm caused by the accused was necessary
for either warding off the attack or for forestalling the further rea-
sonable apprehension from the side of the accu:.ed. The bur-
den of establishing the plea of self-defence is on the accused
G and the burden stands discharged by showing preponderance
of probabilifies in favour of that plea on tr2 basis of the material '
~
on record. (See Munshi Ram and Ors. 1. Delhi Administration 'I""
(AIR 1968 SC 702), State of Gujarat v Bai Ff!tima (AIR 1975 I'=
'·
SC 1478), State of UP v Mohd. Musheer Khan (AIR 1977
H SC 2226), and Mohinder Pal .Jolly v. State of Punjab (AIR 197·9
SATYA NARAIN YADAV v. GAJANAND &ANR. 619
~ [DR. ARIJIT PASAYAT, J.]

SC 577). Sections 100 to 101 define the extent of the right of A
I(' private defence of body. If a person has a right of private de-
fence of body under Section 97, that right extends under Sec-
tion 100 to causing death if there is reasonable apprehension
that death or grievous hurt would be the consequence of the
assault. The oft quoted observation of this C'ourt in Salim Zia v. B
-f
State of UP (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused person to establish
the plea of self-defence is not as onerous as the one
which lies on the prosecution and that, while the prosecution
is required to prove its case beyond reasonable doubt, c
ire.
' the accused need not establish the plea to the hilt and
may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for
that plea in the cross-examination of the prosecution
witnesses or by adducing defence evidence." o.
-1
.. .. 10. The accused need not prove the existence of the right
\
, of private defence beY-ond reasonable doubt. It is enough for
'
him to show as in a civil case that the preponderance of prob-
abilities is in favour of his plea.
E
11. A plea of right of private defence cannot be based on
... surmises and speculation. While considering whether the right
of private defence is available to an accused, it is not relevant
\
whether he may have a chance to inflict severe and mortal injury
on the aggressor. In order to find whether the right of private F
..(
defence is available to an accused, the entire incident must be
examined with care and viewed in its proper setting. Section
...., 97 deals with the subject matter of right of private defence. The
plea of right comprises the body or property (i) of the person
exercising the right; or (ii) of any other person; and the right may

•
I ....
be exercised in the case of any offence against the body, and in
the case of offences of theft, robbery, mischief or criminal tres-
pass, and attempts at such offences in relation to property. Sec-
G

Ill
tion 99 lays down the limits of the right of private defence. Sec-
\ .
tions 96 and 98 give a right of private defence against certain
H
,
l
i
620 SUPREME COURT REPORTS [2008] 11 S.C.R.

-.I
A offences and acts. The right given under Sections 96 to 98 and .
"~
~

,_...,...
I •

100 to 106 is controlled by Section 99. To claim a right of pri-
vate defence extending to voluntary causing of death, the ac-
cused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or griev-
B ous hurt would be caused to him. The burden is on the accused
to show that he had a right of private defence which extended to )

causing of death. Sections 100 and 101, !PC define the limit
and extent of right of private defence.
12. Sections 102_and 105, IPC deal with commencement
""'
c and continuance of the right of private defence of body and prop-
erty respectively. The right commences, as soon as a reason-
able apprehension of danger to the body arises from an attempt,
or threat, to commit the offence, although the offence may not
- ..
have been committed but not until there is that reasonable ap-
D prehension. The right lasts so long as the reasonable appre-
hension of the danger to the body continues. In Jai Dev. v. State
of Punjab (Al R 1963 SC 612), it was observed that as soon as > ~-

the cause for reasonable apprehension disappears and the ~,

threat has either been destroyed or has been put to route, there
E can be no occasion to exercise the right of private defence.
13. In order to find whether right ofprivate defence is avail-
able or not, the injuries received by the accused, the imminence •
of threat to his safety, the injuries caused by the accused and
the circumstances whether the accused had time to have re-
F course to public authorities are all relevant factors to be consid- r
ered. Similar view was expressed by this Court in Biran Singh )I.

v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v.
State of Punjab (1996) 1 SCC 458, Sekar·alias Raja Sekharan ,....
v. State represented by Inspector of Police, TN. (2002 (8) SCC
G 354).

14. As noted in Butta Singh v. The State of Punjab (AIR
-4

,. l•
1991 SC 1316), a person who is appretiendirig death or bodily -,..
injury cannot weigh in golden scales in the spur of moment and >-
in the heat of circumstances, the number of injuries required to
H
SATY;\ NARAIN YADAV v. GAJANAND & ANR. 621
[DR. ARIJIT PASAYAT, J.]
~
disarm the assailants who were armed with weapons. In mo- A
...,.... ments of excitement and d1sturbed mental equilibrium it is often
difficult to expect the parties to preserve composure and use
exactly only so much force in retaliation commensurate with the
danger apprehended to him where assault is imminent by use
of force, it would be lawful to repel the force in self-defence and B
~
the right of private-defence commences, as soon as the threat
becomes so imminent. Such situations have to be pragmati-
cally viewed and not with high-powered spectacles or micro-
scopes to detect slight or even marginal overstepping. Due
weightage has to be given to, and hyper technical approach c
has to be avoided in considering what happens on the spur of
the moment on the spot and keeping in view normal human re-
action and conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the guise of
self-preservation, what really has been done is to assault the
D
original aggressor, even after the cause of reasonable appre-
.. hension has disappeared, the plea of right of private-defence
can legitimately be negatived. The Court dealing with the plea
has to weigh the material to conclude whether the plea is ac-
ceptable. It is essentially, as noted above, a finding of fact.
E
15. The right of self-defence is a very valuable right, serv-
ing a social purpose and should not be construed narrowly. (See
Vidhya Singh v. State of M.P (AIR 1971 SC 1857). Situations
have to be judged from the subjective point of view of the ac-
cused concerned in the surrounding excitement and confusion F
J of the moment, confronted with a situation of peril and not by
.<(
any microscopic and pedantic scrutiny. In adjudging the ques-
tion as to whether more force than was necessary was used in
the prevailing circumstances on the spot it would be inappro-
priate, as held by this Court, to adopt tests by detached objec-
G
~ tivity which would be so natural in a Court room, or that which
4
would seem absolutely necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat to him-
"" self cannot be expected to modulate his defence step by step
with any aritt,imetical exactitude of only that much which is re-
H
622 SUPREME COURT REPORTS [2008] 11 S.C.R.

A quired in the thinking of a man in ordinary times or under normal
circumstances.
16. In the illuminating words of Russel (Russel on Crime,
11 1h Edition Volume I at page 49):

B " .... a man is justified in resisting' by force anyone who
manifestly intends and endeavours by violence or surprise )

to commit a known felony against either his person,
habitation or property. In these cases, he is not-obliged to
retreat, and may not merely resist'the attack where, he
c $tands but may indeed pursue his adversary t,.mtil the
danger is ended and if ·in a· conflict betWeen them· he
happens to kill his attacker, such killing is justifiable."
. . . .
17. The right of private defence is essentially a defensive
rigbtcircumscribed by the governing statute i.e. the IPC, avail-
D able only vyhen the circumstances clearly justify it. It should not
a
be allowed. to be pleaded or availed as a pre.text for vindic-
.it
tiv_e, aggressive or retributive purpose of offence. It is a right of
defence, n~t of retribution, expected 'to repel unlawful .aggr~s~
sion and -not as retaliatory measure. While providing for ex~r··
E cise of the ·right, care has been taken in IPC not to provide and
has not devised a mechanism-whereby an attack may be apre-
tence for killing. A right to defend does not include a right to
launch an offensive, particularly when the n'eed to defend no
longer survived. ·
F 18. The above position was. highlighted in, V · Subramani
aryd Anr. vs . .State .of Tamil Nadu (2005 .(10) SCC 358) and
Genda Singh and Ors. v. Stat~ of-U.P.. (CriminaiAppeal arising
out of SLP (Crl.) No.1029/07.disposed
; ' . .
of. on• ' ;July 9,,2008).
'

G 19. It alsc>would be necessary'and proper fo consider and
clarify the legal position first. Chapter XXIX (Sections 372-394)
of the Code of Criminal Procedure; 1973 (hereinafter ·referred
to as "the present Code") deals with appeals. Seetion 372 ex-
pressly- declares that no appeal shall lie from any judgment or
H order of a criminal court excepras provided by the Code or' by
SATYA NARAIN YADAV v. GAJANAND &ANR. 623
[DR. ARIJIT PASAYAT, J.]
)""
any other law for the time being in force. Section 373 provides A
for filing of appeals in certain cases. Section 374 allows ap-
peals from convictions. Section 375 bars appeals in cases
where the accused pleads guilty. Likewise, no appeal is main-
tainable in petty cases (Section 376). Section 377 permits ap-
peals by the State for enhancement of sentence. Section 378 B
confers power on the State to present an appeal to the High
Court from an order of acquittal. The said section is material
and may be quoted in extenso:
"378. Appeal in case of acquittal.-(1) Save as otherwise
provided in sub-section (2) and subject to the provisions of c
sub-sections (3) and (5), the State Government may, in any
· case, direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of acquittal
passed by any court other than a High Court, or an order of
acquittal passed by the Court of Session in revision. D

." (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 Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to make E
investigation into an offence under any Central Act
other than this Code, the Central Government may
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. F
(3) No appeal under sub-section (1) or 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 G
institu~ed upon complaint and theHigh Court, on an
application made to it by the complainant in this
..,. behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an
appeal to the High Court. H
624 SUPREME COURT REPORTS [2008] 11 S.C.R.

A (5) No application under sµb-section (4) for the grant'of
spe.cial leave to appeal from an order of acquittal
shall be entertained by the High Court after the expfry
of six months, where the complainant is a public
servant, and sixty days in every other ca$e, computed
B from the date of that ord~r of acquittal.
(6) If, in any case, the application under sub-section (4) )
for the grant of special leave to appe·a1 from an order
of acquittal is refused, no appeal fr.om that order of
acquittal shall lie under sub-section (1) or under sub-
c section (2). - · ' ·

20. Whereas Sedions 379-380 cover special cases of
appeals, other sections lay down procedure to be followed by
appellate courts.
D· 21. It may be stated that more or less similar provisions
were found in the Code of Criminal Procedure, 1898 (he·reinaf-
ter referred to as "the old Code") which came up for consider-
ation ·before various High Courts, Judicial Committee of the
Privy Council as also before this Court. Since in the present
E 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 Iacquittal,
,
we have
.
confined •.ourselves to one aspect
only i.e. an appeal against an order of acquittal. ·
22. Bare reading of Section 378 of the present Code (ap-
F peal in case of acquittal) quoted above, makes it clear that no
restrictions have been imposed by the legislatuie bn the pow-
ers of the appellate court in dealing with appeals against ac-
quittal. When such an appeal is filed, the High Court has full
power to reappreciate, review and reconsider the evidence at
G large, the material on which the order of acquittal is founded
and to reach its own conclusions on .such evidence. Both ques-
tions of fact and of law are open to determin~tion by the High
Court in an ~ppeal against an order of acquittal. .
23; It cannot, however, be forgotten that in case of acquit-
H
SATYA NARAIN YADAV v. GAJANAND &ANR. 625
• )' [DR. ARIJIT PASAYAT, J.]

tal, there is a double presumption in favour of the accused. A
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
· person should be presumed to be innocent unless he is proved
to be guilty by a competent court of law. Secondly, the accused
· having secured an acquittaJ, the presumption of his innocence B
is certainly not weakened but reinforced, reaffirmed and
strengthened by the trial court.
24. Thoug·h ·the above principles are well established, a
. different note was struck in several decisions by various High
Courts and eve~ by this Court. It is, therefore, appropriate if we c
consider some of the leading decisions on the point.
25. The first important decision was rendered by the Judi-
cial Committee of the Privy Council in Sheo Swarup v. R. Em-
peror (1934) 61 IA 398). In Sheo Swarup the accused were
D
. acquitted by the trial court and the local Government directed
.....
I 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 hear-
ing of appeal before the High Court, it was contended on behalf
. of the accused that in an. appeal from an order of acquittal, it E
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 per-
versity or incompetence on his part. The High Court, however,
declined to accept the said view. It held that no condition was F
imposed on the High Court in such appeal. It accordingly re-
viewed all the evidence in the case and having formed an opin-
ion of its weight 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 appeal on the ground that G
conflicting views had been expressed by the High Courts in dif-
..., ferent 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 findings of fact recorded by the trial Judge.
Their Lordships thought it fit to clarify the legal position and ac- H
626 SUPREME COURT REPORTS [2008] 11 S.C.R.
.... ,
1

A cordingly 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 restriction on the High Court in
B 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 against acquittal and an appeal against
conviction. Though several authorities were cited revealing dif- \
ferent views by the High Courts dealing with an appeal from an
c order of acquittal, the Committee did not think it ~roper to dis-
cuss all the cases.
26. Lord Russel summed up the legal position thus:
"There is, in their opinion, no foundation fot the view,
apparently supported by the judgments of some courts in
D
India, that the High Court has no power or jurisdiction to Jo.
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'
reached such 'distorted conclusions as to produce a
E 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."

F 27. 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, arid to reach the
conclusion that upon that evidence the order of acquittal
G should be reversed. No limitation should be placed upon
that power, unless it be found expressly stated in the Code."
'r

28. The Committee, however, cautioned appellate courts f,
and stated: (IA p.404)

H "But in exercising the power conferred by the Code and
SATYA NARAIN YADAV v. GAJANAND &ANR. 627
.,... [DR. ARIJIT PASAYAT, J.]
~

before reaching its conclusions upon fact, the High Court A
should and will always give proper weight and
consideration to such matters· as (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he B
has been acquitted at his trial; (3) the right of the accused
t6 the benefit of any doubt; and (4) the slowness of an
appellate court·in disturbing a finding of fact arrived at by
a judge who had the advantage of seeing the witnesses.
To state this, however, is only to say that the High Court c
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."
(emp~asis supplied)
D
29. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the
.. ~
Committee reiterated the above view in Shea Swarup (Supra)
and held that in an appeal against acquittal, the Higti Court has
full .powers to review and to reverse acquittal.
· ·30. So far as this Court is concerned, probably the first E
decision on the point was Prandas v. State (AIR 1954 SC 36)
(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 pun- F
ishable under Sections 302 and 323 IPC. The High Court, for
convicting the accused, placed reliance on certain eyewit-
nesses.
31. Upholding the decision of the High Court and follow-
ing the proposition of law in Shea Swarup (supra), a six-Judge G
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
H
628 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 417, Criminal Procedure Code, to reverse a judgment of
acquittal, unless the judgment is perverse or the
subordinate court has in some way or other misdirected
itself so as to produce a miscarriage of justice."
(emphasis supplied)
B
. 32. 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
c acquittal was founded. But it was equally well settled that the.·
presumption of innocence of the accused was further reinforced
by his acquittal by the trial court, and the findings of the trial
court which had the advantage of seeing the witnesses and
hearing their evidence could be reversed only for very substan-
D tial and compelling reasons.
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 con-
E tended by him that there were "no compelling reasons" for set-
ting 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
F law in observing that "when a strong 'prima facie' cc;1se is made
out against an accused person it is his duty to explain the cir-
cumstances 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".
G 34. Upholding the contention, this Court said:
"We think this criticism is well founded. After an order of
acquittal has been made the presumption of innocence is
further reinforced by that order, and that being so, the trial
court's decision can be reversed not on the ground that
H
SATYA NARAIN YADAV v. GAJANAND & ANR. 629
[DR ARIJIT PASAYAT, J.]

the accused had failed to explain the circumstances A
appearing against him but only for very substantial and
comp"elling reasons."
(emphasis supplied)
35. In Atley v. State of UP (AIR 1955 SC 807) this Court B
said:
"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 judgment
of acquittal under appeal was perverse it could not set C
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 .
0
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
have been recorded in its presence. E
ltis also well settled that the court of appeal has 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 conviction, subject to the riders that the F
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.
G
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."
(emphasis supplied) H
630 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 36. 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
against an order of acquittal, Bose, J. speaking for the majority
H (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
r~asons for holding that the trial court was wrong."

(emphasis supplied)
c
37. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR
120, a three-Judge Bench considered almost all leading deci-
, s'ions on the point and observed that there was no difficulty in
applying the principles laid down by the Privy Council and ac-
D cepted 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:
· "This Court obviously did not and could not add a condition
E to Section 417 of the Criminal Procedure Code. The words
were intended to convey the idea that an appellate court
notonly shall bear in mind the principles laid down by the
Privy Council but also must give its clear reasons for
coming to the conclusion that the order of acquittal was
F wrong."
The Court concluded as follows:
"9. The foregoing discussion yields the following results:
( 1) an appellate court has full power to review the evidence
upon which the order of acquittal is founded; (2) the
G
principles laid down in Sheo Swarup case afford a correct
guide for the appellate court's· appro'ach to a case in
disposing of such an appeal; a11d (3) the different
phraseology used in the judgments of this Court, such as,
(1) 'substantial and compelling reasons', (i1) 'good and
H
_.
, SATYA NARAIN YADAV v. GAJANAND &ANR.
[DR. ARIJIT PASAYAT, J.]
631

sufficiently cogent reasons', and (iii) 'strong reasons' are A
not intended to curtail the undoubted power of an appellate
court in an appeal against acquittal to review the entire
evidence and to come to its own conclusion; but in doing
so it should not only consider every matter on record having
a bearing on the questions of fact and the reasons given 8
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."
38. Again, in M.G. Agarwalv. State of Maharashtra (1963) c
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,
D
_.._ 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 of seeing the
witnesses and hearing their evidence can be reversed ~
only for very substantial and compelling reasons': vide
Surajpa/ 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 F
'Very substantial and compelling reasons to do so'. In some
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 G
observations were not intended to lay down a rigid or
'y
inflexible rule which should govern the 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 H
632 SUPREME COURT REPORTS [2008] 11 S.C.R.
...,
A 423(1) of the Code. All that the said observations are
intended to emphasize is that the approach of the High
Court in dealing with an appeal against acquittal ought to
be cautious because as Lord Russell observed in Shea
Swarup the presumption of innocence in favour of the
B accused 'is not certainly weakened by the fact that he has
been acquitted at his trial'. Therefore, the test suggested .•
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
c decisions of this Court, for instance, in Sanwat Singh v.
State of Rajasthan and Harbans Singh v. State of Punjab
(1962 Supp 1SCR104) 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."
D
(emphasis supplied) ),.

39. Yet in another leading decision in Shivaji Sahabrao
Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court
he.Id that in India, there is no jurisdictional limitation on the pow-
E ers of appellate court. "In law there are no fetters on the plenary
power of the appellate court to review the whole evidence on
which the order of acquittal is founded and, indeed, it has a duty
to scrutinise the probative material de novo, informed, however,
by the weighty thought that the rebuttable innocence attributed
F to the accused having been converted into an acquittal the horn- )..
age our jurisprudence owes to individual liberty constrains the
higher court not to upset the holding without very convincing rea-
sons and comprehensive consideration."
40 . .Putting emphasis on balance between importance of
G
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
H suffers from insufficient forensic appreciation. The dangers
SATYA NARAIN YADAV v. GAJANAND & ANR. 633
[DR. ARIJIT PASAYAT, J.]
r of exaggerated devotion to the rule of benefit of doubt at A
"""',.. ·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 8
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 c
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
D
. 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
demand for harsher legal presumptions against indicted E
'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 F
. may arise from the acquittal of the guilty no less than from
~
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 G
chance possibilities as good enough to set the delinquent
free and chopping the logic of preponderant probability
to punish marginal innocents."

(emphasis supplied)
H
'
I-

634 SUPREME COURT REPO.RTS [2008] 11 S.C.R.

""\
A · 41. In 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.
Afte·r considering the relevant decisions on the point it was stated
as follows:
B . "9. The principles are now well settled. At one time it was
thought that an order of acquittal could be set aside for .~

'substantial and compelling reasons' only and courts used
to launch on a search to discover those 'substantial and
compelling reasons'. However, the.'formulae' of 'substantial
c and compelling reasons'; .'good and sufficiently cogent
reasons' and 'strong reasons' and· the search for them
were abandoned as a result of the pronouncement of this
Court in Sanwat Singh v. State of Rajasthan (1961) 3
SCR 120. In Sanwat Singh case this Court ha·rked back
D to the principles enunciated by the Privy Council in Sheo
Swarup v. R. Emperor and reaffirmed those principles .
. After Sanw~t 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
E .. 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
F 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 conclusion. In
. some cases (Ramaphupala _Reddy v. State of A.P., (AIR
1971 SC 460) Bhim Singh Rup Singh v. State of
G
. 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
"f
conclusions can be reached on the basis of the evidence
on record, the appellate court should not disturb the finding
H
SATYA NARAIN YADAV v. GAJANAND &ANR. 635
[DR. ARIJIT PASAYAT, J.]

of the trial court'. This, of course, is not a new principle. It A
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
evenly balanced views of the evidence are possible, one
must necessarily concede the existence of a.reasonable B
doubt. But, fanciful and ren:iote 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,
the possible view in favour of the accused must be as
nearly reasonably probable as that against him. If the c
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
0
which an accused person may claim, must be
reasonable."
(emphasis supplied)
42. In Ramesh Babula/ Doshi v. State of Gujarat (1996) 9
SCC 225, this Court said: E

"VVhile sitting in judgment over an acquittal the app~llate
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 F
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
any of the above infirmities it can then-and then only- G
reappraise the evidence to arrive at its own conclusions."
43. 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 H
636 SUPREME COURT REPORTS [2008] 11 S.C.R.

A avoid miscarriage of justice. A miscarriage of justice which
may arise from the acquittal of guilty is no less than from
the conviction of an innocent. In a case where the trial
court has taken a view based upon conjectures and
hypothesis and not on the legal evidence, a duty is cast
8 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 t;:iken by the trial court which may not be
disturbed in the appeal is such a view which is based
c 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."
44. In Bhagwan Singh v. State of M.P (2002) 4 SCC 85,
D the trial court acquitted the accused but the High Court con--
victed them. Negativing the contention of the appellants that the
Hig_h Court could not have disturbed the findings of fact of the
trial co'urt even if that view was not correct, this Court observed:
"7. We do not agree with the submissions of the learned
E 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
F 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 or.der of
G 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
H and the other to his innocence, the view which is favourable
SATYA NARAIN YADAV v. GAJANAND &ANR. 637
[DR. ARIJIT PASAYAT, J.]
,,.
to the accused should be adopted. Such is not a jurisdiction A
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 B
. 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". c
45. 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
order of acquittal or conviction as a court of first appeal
D
has full power to review the evidence to reach its own
independent conclusion. However, it will not interfere with
... an order of acquittal lightly or merely because one other
view is possible, because with the passing of an order of
acquittal presumption of innocence in favour of the
accused gets reinforced and strengthened. The High Court E
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
the High Court while reversing an order of acquittal to
examine and discuss the reasons given by the trial court F
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."

. 46. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12
SCC 606, this Court observed:
G

~ "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 H
,,
638 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 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
B to the accused should be adopted. The paramount r
consideration of the court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may r
arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible
c 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". \.-
t
r
D 47. Again in Kal/u v. State of MP (2006) 10 SCC 313,
this Court stated:
"8. While deciding an appeal against acquittal, the power )
,~
r
'
of the appellate court is no less than the power.exercised
while hearing appeals against conviction; In both types of
E 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 judgmentof the trial court is based on evidence
· and the view taken is reasonable and plausible. It will not
F 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,
G -~. \....
it should assign reasons for differing with the decision of ,...
the trial court." .h
\..._

(emphasis supplied) f
.., ;:.
.l
48. From the above .decisions, in Chandrappa and Ors. ......
,.-
H v. State of Karnataka (2007 (4) SCC 415), the following gen-
SATYA NARAIN YADAV v. GAJANAND &ANR. 639
[DR. ARIJIT PASAYAT, J.]
y
eral principles regarding powers of the appellate court while deal- A
ing 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.
B
(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
it may reach its own conclusion, both on questions of
fact and of law. c
(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 D
against acquittal. Such 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. E
(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
principle of criminal jurisprudence that every person F
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court. G
(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.
H
640 SUPREME COURT REPORTS [2008] 11 S.C.R.
-...
A 49. 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-
B 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)]:
c "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. I-
In a criminal case, different pieces of evidence directed to '
D establishing that the defendant did the prohibited act with
the specified state of mind are generally dependent. A
,j
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
E 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."
50: Doubts would be called reasonable if they are free I

F 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 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-
G 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.
51. The concepts of probability, and the degrees of it, can-
H
SATYA NARAIN YADAV v. GAJANAND &ANR. 641
[DR. ARIJIT PASAYAT, J.]

not obviously be expressed in terms of units to be mathemati- A
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-
sis, rest on a robust common sense and, ultimately, on the trained Bi
intuitions of the Judge. While the protection given by the crimi-
nal process to the accused persons is not to be erpded, 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 Lord- c
ship then was) in State of UP v. Krishna Gopal (1988 (4) SCC
302).
52. The above position was highlighted in Krishnan and
Anr. v. State represented by Inspector of Police (2003 (7) SCC
56). D
53. Considering the background facts we are of the view
that the High Court has rightly held that Gajanand was exercis-
ing the right of private defence. Therefore, there is no merit in
these appea_ls which are dismissed accordingly.
E
S.K.S. Appeals dismissed.