Holding

The High Court's acquittal was upheld because the dying declaration was not reliable and there were no substantial reasons for the Supreme Court to interfere.

Summary

The accused Yusuf was convicted for murder under Section 302 IPC based primarily on the victim Sugra's dying declaration. The Rajasthan High Court acquitted him, holding that the dying declaration contained false statements about pregnancy, marital status, and family members, rendering it unreliable. The State appealed, arguing that a dying declaration, if truthful and voluntary, can form the sole basis of conviction without corroboration. The Supreme Court examined the standards for evaluating dying declarations and the appellate court's power to review acquittals under Sections 378, 417, 418, and 423 of the CrPC. It held that the High Court was correct in finding the declaration unreliable and that there were no substantial or compelling reasons to disturb the acquittal, especially where two reasonable conclusions were possible. Consequently, the appeal was dismissed, reaffirming the presumption of innocence and the limited scope of appellate interference in acquittal cases.

Issues considered

The reliability of the victim's dying declaration as the sole basis for conviction under Section 302 IPC.
Whether the appellate court can overturn an acquittal when the dying declaration is deemed unreliable.
The extent of the appellate court's power under Sections 378, 417, 418, and 423 of the CrPC to review evidence in an acquittal appeal.
The necessity of corroboration for a dying declaration in criminal trials.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 313, s. 378, s. 417, s. 418, s. 423
Indian Penal Code, 1860s. 302

Subjects

dying declarationacquittal appealpresumption of innocenceSection 302 IPCCriminal Procedure Codeappellate jurisdictioncorroborationbenefit of doubt

Judgment

[2009] 6 S.C.R. 1138
"'I

A STATE OF RAJASTHAN
v.
YUSUF
(Criminal Appeal No. 698 of 2003)
APRIL 27, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.] ••

Penal Code, 1860: s. 302 - Conviction by trial court
c relying on dying declaration - High Court found that dying
declaration was not reliable and directed acquittal - Appeal
against acquittal - Held: No case made out for interference
- The finding of High Court that dying declaration was not
truthful and there was attempt to falsely implicate the accused
D was borne out by various statement in the dying declaration
which were proved beyond doubt to be false - Order of High
Court cannot be faulted - Moreover, in case of acquittal, there
is doub(e presumption in favour of accused - If two
reasonable conclusions were possible on the basis of
E evidence, appellate court should not disturbed the findings of
acquittal recorded by court below - Evidence - Dying
declaration - Appeal against acquittal.
r
The trial Court relied upon the dying declaration and
held the appellant guilty of offence punishable under
F s.302 IPC. On appeal, High Court found that the dying
declaration was not reliable and directed acquittal. Hence
the appeal.

Dismissing the appeal, the Court
G ~

HELD: 1.1. This is a case where the basis of
conviction of the accused is the dying declaration. The
situation in which a person is on the deathbed is so
solemn and serene that the grave position in which he
H 1138
STATE OF RAJASTHAN v. YUSUF 1139
"(

is placed, is the reason in law to accept the veracity of A
" his statement. It is for this reason that the requirements
of oath and cross-examination are dispensed with.
Besides, should the dying declaration be excluded, it will
result in the miscarriage of justice because the victim
being generally the only eyewitness in a serious crime, B
the exclusion of the statement would leave the court
.. • without a scrap of evidence. [Para 5] [1147-C-E]

1.2. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has no
power of cross-examination. Such a power is essential
c
for eliciting the truth as an obligation of oath could be.
This is the reason the court also insists that the dying
declaration should be of such a nature as to inspire full
confidence of the court in its correctness. The court has
to be on guard that the statement of the deceased was D
not as a result of either tutoring, or prompting or a product
of imagination. The court must be further satisfied that the
deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailant. Once
the court is satisfied that the declaration was true and E
voluntary, undoubtedly, it can base its conviction on the
same without any further corroboration. It cannot be laid
l' down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration F
is merely a rule of prudence. [Para 6] [1147-E-H; 1148-A]

Paniben v. State of Gujarat (1992) 2 SCC 474; Munnu
Raja v. State of M.P. (1976) 3 SCC 104; State of U.P. v. Ram
Sagar Yadav (1985(1) SCC 552; Ramawati Devi v. State of
• Bihar 1983) 1 SCC 211; K. Ramachandra Reddy v. Public
G

Prosecutor (1976(3) SCC 618; Rasheed Beg v. State of M.P.
(1974) 4 SCC 264; Kake Singh v. State of M.P. (1981) Supp.
SCC 25; Ram Manorath v. State of U.P. (1981) 2 SCC 654;
H
1140 SUPREME COURT REPORTS [2009] 6 S.C.R. '(

'f
A State of Maharashtra v. KrishnamurtiLaxmipati Naidu (1980)
Supp. SCC 455; Surajdeo Ojha v. State of Bihar (1980 ;.

Supp.sec 769; Nanhau Ram v. State of M.P. (1988) Supp.
SCC 152; State of UP. v. Madan Mohan (1989) 3 SCC 390
and Mohan/al Gangaram Gehani v. State of Maharashtra
B (1982) 1 sec 700, relied on.

1.3. The dying declaration is only a piece of untested
evidence and must, like any other evidence, satisfy the .. ..
court that what is stated therein is the unalloyed truth and
that it is absolutely safe to act upon it. If after careful
c scrutiny, the court is satisfied that it is true and free from
any effort to induce the deceased to make a false
statem~nt and if it is coherent and consistent, there shall
be no legal impediment to make it the basis of conviction,
even if there is no corroboration. [Para 7] [1149-F-H; 1150-
D A]

Gangotri Singh v. State of UP. (1993) Supp 1 SCC 327,
relied on.

1.4. When the evidence on record has been
E examined in great detail by the trial Court and the High
Court to place reliance on the dying declaration, the
conclusions cannot be in any way faulted. In the instant
case the High Court found the dying declaration to be not r
truthful and that there was an inherent attempt to falsely
F implicate the accused which was borne out by various
statements in the so called dying declaration which were
proved beyond doubt to be false. [Paras 8 and 9] [1150-
A-CJ

G 2.1. In case of acquittal, there is a double
presumption in favour of the accused. Firstly, the
..
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is
proved to be guilty by a competent court of law.
H
1142 SUPREME COURT REPORTS [2009J 6 S.C.R

A "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. An appellate court, however,
must bear in mind that in case of acquittal, there is double
B presumption in favour of the accused. 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. It does not appear
to be a case where any interference is called for. [Paras
• ,
c 35 and 36] [1164-F-H; 1165-A-F]

Case Law Reference:

(1992) 2 sec 474 relied on Para 6

(1976) 3 sec 104 relied on Para 6
D
1985(1) sec 552 relied on Para 6

(1983) 1 sec 211 relied on Para 6

1976(3) sec 618 relied on Para 6
E (1974) 4 sec 264

(1981) Supp. sec 25
relied on

relied on
Para 6

Para 6
-
(1981) 2 sec 654 relied on Para 6 1

F (1980) Supp. sec 455 relied on Para 6

(1980) Supp. sec 769 relied on Para 6

(1988) Supp. sec 152 relied on Para 6

(1989) 3 sec 390 relied on Para 6
G
(1982)1 sec 100 relied on Para 6 ..
(1993) Supp 1 sec 327 relied on Para 7

H
STATE OF RAJASTHAN v. YUSUF 1143

(1934) 61 IA 398 relied on Para 12 A

'
AIR 1945 PC 151 relied on Para 16

AIR 1954 SC 36 relied on Para 17

1952 SCR 193 relied on Para 19 B
1953 SCR 418 relied on Para 20

• AIR 1955 SC 807 re.lied on Para 22

(1955) 2 SCR 1285 relied on Para 23
c
(1961) 3 SCR 120 relied on Para 24
(1963) 2 SCR 405. relied on Para 25
1973 (2) sec 793 relied on Para 26
D
(1979) 1 sec 355 relied on Para 28
(1996) 9 sec 225 relied on Para 29
(2002) 3 sec 57 relied on Para 30
(2002) 4 sec 85 relied on Para 31 E

(2002) 6 sec 470 relied on Para 32
(2003) 12 sec 606 relied on Para 33
(2006) 10 sec 313 relied on Para 34 F
2001 (4) sec 415 relied on Para 35

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 698 of 2003.
G
From the Judgment & Order dated 29.1.2002 of the High
Court of Judicature of Rajasthan at Jodhpur in D.B. Criminal
Appeal No. 263 of 1996. ·

Dr. Manish Singhvi, AAG and Milind Kumar for the
Appellant. H
1144 SUPREME COURT REPORTS [2009) 6 S.C.R.

A Ratan Kumar, B.J. Mishra for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of a Division Bench of the Rajasthan High
B Court, Jodhpur, directing acquittal of the respondents, who were
found guilty of offence punishable under Section 302 of the
Indian Penal Code, 1860 (in short the 'IPC') by the Learned
Additional Sessions Judge, Sojat, Shivir.

c 2. Background facts in a nutshell are as follows;

Smt. Sugra was wife of accused Yusuf, who was married
with her 20 years ago. Smt. Sugra was blessed with two
daughters; one was 12 years old and other was 5 years old.
At about 1 O'clock on 25.2.1986 Smt. Sugra was thinking to
D prepare lunch in the kitchen. Just then her husband accused
t
Yusuf entered in the house and asked her to get out of house.
Smt. Sugra told him that she will leave only after a lapse of three
months. On this Smt. Sugra's husband said that he would bring
another wife, and Yusuf poured a bottle of Kerosene Oil on her
E and lit the fire. She rushed out of the house, then the daughter
in law of Mahmood Khan and Farid Khan came out and threw
a bucket of water on her. The Accused ran away through the
crops of mustard. Head Constable Vijay Kumar and Constable
'I
Prabhu Singh of Jaitaran Police Station chowki were patrolling.
F The children heard the sound of running and crying that a
woman is burnt whereupon they reached the spot. A woman
was sitting outside the house of Sugra who was almost in naked
condition. Sugra was covered with a blanket, which was lying
on the cot, and with the help of a motorcyclist she was taken to
G hospital with constable Prabhu Singh in the hospital, Sugra's
statements were recorded by the S.H.O. of Jaltaran. On the
basis of above statement, case was lodged under Sec. 307
1.P.C.

Site of occurrence was inspected on the day of occurrence
H
STATE OF RAJASTHAN v. YUSUF 1145
[DR. ARIJIT PASAYAT, J.]

itself and Memo Ex.P-1 was made During the inspection, on A
the spot (i.e. the kitchen) a kerosene bottle was found and
sealed and pieces of burnt clothes were found outside the
kitchen. A match-box was found in the kitchen. Collecting the
pieces of burnt clothes from the spot, Memo. Ex.P-2 was
prepared and memo Ex.P-3 of recovered burnt clothes - from B
the body of Smt. Sugra was prepared. During the investigation,
certificate ExP-1 regarding the condition of Sugra for giving
statement was prepared ..Smt. Sugra's statement just before
her dying declaration was recorded on the day of incident at
3:20 P.M. by S.H.O. Jaltaran which is ~xhibited as Ex.P.13. On c
25/02/1986 statements of lshq Ali, Mojhnuddin, Narpat Singh,
Kaai, Janna!. Fatma, Sadiq, Tultana, and Anwar were recorded.
On 27.2.1986 Smt. Sugra's dying declaration was recorded by
the Additional Chief Judicial Magistrate Jaltaran. Injury report
of Smt. Surga was received vide Ex.P-4. ' D

On completion of investigation chargesheet was filed.
Charges under Sec. 302 IPC against accused Yusuf and
Charges under Section 120-B read with Sec. 302 IPC against
other six accused persons was read over to them. Accused
persons denied the charges and claimed trial. On behalf of the E
prosecution side 29 witnesses were produced in the said case.

Statements of accused persons were recorded under
~ Sec. 313 of the Code of Criminal Procedure, 1973 (in short
'Cr.P.C'). In their statements, accused said that statements of F
· witnesses are wrong and that Sugra's father has burnt her and
lodged this false case in the court. Accused persons, in support
of their defence, examined DW-1 Rajkumar. According to the ·
:: evidence of D.W.1 Rajkumar, on listening to the shrieks and
noise, reached to the spot first and throw water on Sugra and G
.- put off the fire and wrapped her in a blanket. Sugra told him
that his father wanted to get her killed and Sugra had burnt
herself and her father was standing outside the door.

P.W.21 Dr. Kailash Chander Mathur on 20/05/86 was or.
H
1146 SUPREME COURT REPORTS [2009] 6 S.C.R.

A the post of Medical Jurist in Amritkaur Hospital at Beawer. In
his statement this witness has admitted that on that day, on the
request of Police Station Beawer he performed the
postmortem of Smt. Sugra W/o Mohd. Yusuf at 10:30 AM. It has
been stated that Postmortem was done by the Board, whose
B members were he himself and Dr. Nirmala Agarwal and Dr.
Gopa1 Mathur. This witness has stated that the medical board
was of the view that the cause behind Sugra's death was
toxemia due to extensive burn and she had died within six hours
of postmortem. He stated that the postmortem report is written
c by him and bears his signature from A to B. The statement of
this witness makes it clear that injuries of burn caused her
death. According to Trial Court it was to be deterr:nined as to
whether Sugra as per the accused persons, burnt herself or she
was burnt by her father or Smt. Sugra was burnt by her husband
D after conspiring with other accused.

The trial court relied on the purported dying declaration and · t
found the appellant guilty. The High Court found that there were
several variations in the dying declaration and apart from that
the High Court found that the dying declaration was not reliable
E and was not free from infirmity. The High court found that the
deceased had not made truthful statement. Primarily three
circumstances were highlighted to find the dying declaration
unacceptable. They were:

F 1. a false statement about pregnancy;

2. the statement about the marital status.

3. false implication of a large number of family
members of the accused.
G
The High Court found that the four statements given by her ,
and described as dying declaration and the statement under
Section 161 of the CrPC indicated that she was consistently
improving her version to implicate the accused somehow or
H other.
i '
STATE OF RAJASTHAN v. YUSUF 1147
[DR. ARIJIT PASAYAT, J.]
"(
It was also found that her statement about the A
whereabouts of the children were also proved to be false .
.. Accordingly High Court directed acquittal.

3. Learned counsel for the appellant submitted that even
if there were exaggerations that should not have weighed with
8
the High Court to direct acquittal.
~
4. Learned counsel for the respondent supported the
• judgment of the High Court.

5. This is a case where the basis of conviction of the c
accused is the dying decbration. The situation in which a
person is on the deathbed is so solemn and serene when he
is dying that the grave position in which he is placed, is the
reason in law to accept the veracity of his statement. It is for
this reason that the requirements of oath and cross-examination D
·~ are dispensed with. Besides, should the dying declaration be
excluded, it will result in the miscarriage of justice because the
victim being generally the only eyewitness in a serious crime,
the exclusion of the statement would leave the court without a
scrap of evidence.
E
6. Though a dying declaration is entitled to great weight,
it is worthwhile to note that the accused has no power of cross-
'f
examination. Such a power is essential for eliciting the truth as
an obligation of oath could be. This is the reason the court also
insists that the dying declaration should be of such a nature as F
to inspire full confidence of the court in its correctness. The court
has to be on guard that the statement of the deceased was not
as a result of either tutoring, or prompting or a product of
imagination. The court must be further satisfied that the
deceased was in a fit state of mind after a clear opportunity to G
observe and identify the assailant. Once the court is satisfied
that the declaration was true and voluntary, undoubtedly, it can
base its conviction on the same without any further
corroboration. It cannot be laid down as an absolute rule of law
that the dying declaration cannot form the sole basis of H
1148 SUPREME COURT REPORTS [2009] 6 S.C.R.

A conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence. This Court has laid
down in several judgments the principles governing dying
declaration, which could be summed up as under as indicated
in Paniben v. State of Gujarat (1992(2) SCC 474) (SCC
B pp.480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
[See: Munnu Raja v. State ofM.P. (1976 (3) SCC 104)]

C (ii) If the court is satisfied that the dying declaration
is true and voluntary it can base conviction on it, without
corroboration. (See: State of U.P. v. Ram Sagar Yadav
(1985(1) SCC 552) ·and Ramawati Devi v. State of Bihar
1983(1) sec 211 ))
D
(iii) The court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants
and was in a fit state to make the declaration. [See: K.
E
Ramachandra Reddy v. Public Prosecutor (1976(3) SCC
618)])

(iv) Where a dying declaration is suspicious, it should
not be acted upon without corroborative evidence. [See: •
F Rasheed Beg v. State of M.P. (1974(4) SCC 264)]

(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with regard
to it is to be rejected. [See: Kake Singh v. State of M.P.
(1981 Supp. sec 25)]
G
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. [See: Ram Manorath
v. State of U.P. (1981(2)SCC 654]

H (vii) Merely because a dying declaration does not
STATE OF RAJASTHAN v. YUSUF 1149
[DR. ARIJIT PASAYAT, J.]
'f

contain the details as to the occurrence, it is not to be A
rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu [1980 Supp. SCC 455)]

(viii) Equally, merely because it is a brief statement,
it is not to be discarded. On the contrary, the shortness of
B
the statement itself guarantees truth. [See: Surajdeo Ojha
... • v. State of Bihar (1980 Supp.sec 769)]

(ix) Normally, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the c
eyewitness said that the deceased was in a fit and
conscious state to make the dying declaration, the medical
opinion cannot prevail. [See: Nanhau Rarri v. State of'
MP. (1988 supp. sec 152)]
D
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. [See: State of U.P. v.
Madan Mohan (1989 (3) SCC 390)]

(xi) Where there are more than one statements in the E
nature of dying declaration, the one first in point of time
must be preferred. Of course, if the plurality of the dying
declaration could be held to be trustworthy and reliable, it
has to be accepted. [See: Mohan/al Gangaram Gehani
V. State of Maharashtra (1982 (1) sec 700)] F

7. In the light of the above principles, the acceptability of
the alleged dying declaration in the instant case has to be
considered. The dying declaration is only a piece of untested
evidence and must, like any other evidence, satisfy the court G
that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. If after careful scrutiny, the court
is satisfied that it is true and free from any effort to induce the
deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it the
H
1150 SUPREME COURT REPORTS [2009) 6 S.C.R.

A basis of conviction, even if there is no corroboration. (See
Gangotri Singh v. State of U.P. (1993 Supp(1)SCC 327).

8. When the evidence on record has been examined in
great detail by the trial Court and the High Court to place
reliance on the dying declaration, the conclusions cannot be in
B
any way faulted.

9. In the instant case the High Court has found the dying
declaration to be not truthful and that there was an inherent
attempt to falsely implicate the accused which was borne out
" -
c by various statements in the so called dying declaration which
were proved beyond doubt to be false.

10. It cannot, however, be forgotten that in case of acquittal,
there is a double presumption in favour of the accused. Firstly,
D the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every
person should be presumed to be innocent unless he is proved
to be guilty by a competent court of law. Secondly, the accused
having secured an acquittal, the presumption of his innocence
is certainly not weakened but reinforced, reaffirmed and
E
strengthened by the trial court.

11. Though the above principles are well established, a
different note was struck in several decisions by various High
Courts and even by this Court. It is, therefore, appropriate if we
F consider some of the leading decisions on the point.
12. The first important decision was rendered by the
Judicial Committee of the Privy Council in Sheo Swarup v. R.
Emperor(1934) 61 IA 398). In Sheo Swarup the accused were
acquitted by the trial court and the local Government directed
G
the Public Prosecutor to present an appeal to the High Court
from an order of acquittal under Section 417 of the old Code
(similarto Section 378 of the Code). At the time of hearing of
appeal before the High Court, it was contended on behalf of
the accused that in an appeal from an order of acquittal, it was
H
STATE OF RAJASTHAN v. YUSUF 1151
[DR. ARIJIT PASAYAT, J.]
not open to the appellate court to interfere with the findings of A
fact recorded by the trial Judge unless such findings could not
have been reached by him had there not been some perversity
or incompetence on his part. The High Court, however, declined
to accept the said view. It held that no condition was imposed
on the High Court in such appeal. It accordingly reviewed all B
the evidence in the case and having formed an opinion of its
weight and reliability different from that of the trial Judge,
Jo . recorded an order of conviction. A petition was presented to
His Majesty in Council for leave to appeal on the ground that
conflicting views had been expressed by the High Courts in
different parts of India upon the question whether in an appeal
c
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
accordingly upon the "humble advice of their Lordships", leave
D
,
.
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 exercise of powers as an Appellate Tribunal. The
Code also made no distinction as regards powers of the High E
Court in dealing with an appeal against acquittal and an.appeal
against conviction. Though several authorities were cited
revealing different views by the High Courts dealing with an
appeal from an order of acquittal, the Committee did not think
it proper to discuss all the cases. F

13. Lord Russel summed up the legal position thus:

"There is, in their opinion, no foundation for the view,
· apparently supported by the judgments of some courts in
G
India, that the High Court has no power or jurisdiction to
4
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
H
1152 SUP~EME COURT REPORTS [2009] 6 S.C.R.

A positive miscarriage of justice', or has in some other way
so conducted or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked by the
defence so as to produce a similar result."

14. His Lordship, then proceeded to observe: (IA p.404)
B
·"Sections 417, 418 and 423 of the Code give to the High
Court full power to review at large the evidence upon which
the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal
c should be reversed. No limitation should be placed upon
that power, unless it be found expressly stated in the
Code."

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

"But in exercising the power conferred by the Code and
before reaching its conclusions upon fact, the High Court
should and will always give proper weight and
: consideration to such matters as (1) the views of the trial
E ·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 has
been acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; and (4) the slowness of an
F 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
in its conduct of the appeal should and will act in
accordance with rules and principles well known and
G recognised in the administration of justice."

(emphasis supplied)

16. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the
Committee reiterated the above view in Sheo Swarup (Supra)
H
STATE OF RAJASTHAN v. YUSUF 1153
[DR. ARIJIT PASAYAT, J.]

" and held that in an appeal against acquittal, the High Court has . A
full powers to review and to reverse acquittal.

17. So far as this Court is concerned, probably the first
decision on the point was Prandas v. State (AIR 1954 SC 36)
(though the case was decided on 14-3-1950, it was reported B
only in 1954). In that case, the accused was acquitted by the
trial court. The Provincial Government preferred an appeal
~
which was allowed and the accused was convicted for offences
... punishable under Sections 302 and 323 IPC. The High Court,
for convicting the accused, placed reliance on certain
eyewitnesses.
c
18. Upholding the decision of the High Court and following
the proposition of law in Sheo· Swarup (supra), a six-Judge
Bench held as follows:
D
"6. It must be observed at the very outset that we cannot
support the view which has been expressed in several
cases that the High Court has no power under Section
417, Criminal Procedure Code, to reverse a judgment of
acquittal, unless the judgment is perverse or the
E
subordinate court has in some way or other misdirected
itself so as to produce a miscarriage of justice."

~
(emphasis supplied)
/
19. In Surajpal Singh v. State (1952 SCR 193), a two- F
Judge Bench observed that it was well established that in an
appeal under Section 417 of the (old) Code, the High Court
had full power to review the evidence upon which the order of
acquittal was founded. But it was equally well settled that the
presumption of innocence of the accused was further reinforced
G
·• 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 vety substantial and
. compelling reasons.

20. In Ajmer Singh v. State of Punjab (1953 SCR 418) H
1154 SUPREME COURT REPORTS [2009] 6 S.C.R.

.. Athe accused was acquitted by the trial court but was convicted
by the High Court in an appeal against acquittal filed by the
State. The aggrieved accused approached this Court. It was
contended by him that there were "no compelling reasons" for
setting aside the order of acquittal and due and proper weight
B had not been given by the High Court to the opinion of the trial
court as regards the credibility of witnesses seen and
examined. It was also commented that the High Court
committed an error of law in observing that "when a strong
'prima facie' case is made out against an accused person it
C is his duty to explain the circumstances appearing in evidence -
against him and he cannot take shelter behind the presumption
of innocence and cannot state that the law entitles him to keep
his lips sealed".

21. Upholding the contention, this Court said:
D
"We think this criticism is well founded. After an order of t

acquittal has been made the presumption of innocence is
further reinforced by that order, and that being so, the trial
court's decision can be reversed not on the ground that
the accused had failed to explain the circumstances
E
appearing against him but only for very substantial and
compelling reasons."
(emphasis supplied) • ...
F 22. In Atley v. State of U.P. (AIR 1955 SC 807) this Court
said:

"In our opinion, it is not correct to say that unless the
appellate court in an appeal under Section 417, Criminal
. Procedure Code came to the conclusion that the judgment

-
G of acquittal under appeal was perverse it could not set ·
aside that order.

It has been laid down by this Court that it is open to the
High Court on an appeal against an order of acquittal to
H review the entire evidence and to come to its own
STATE OF RAJASTHAN v. YUSUF 1155
[DR. ARIJIT PASAYAT, J.]
• conclusion, of course, keeping in view the well-established A
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. B
It is 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
presumption of innocence with which the accused person c
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.
D
• 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)
E
23. 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 F
(2:1) stated: (AIR p. 220, para 1) "It is, in our opinion, well settled
that it is not enough for the High Court to take a different view
of the evidence; there must also be substantial and
compelling reasons for holding that the trial court was wrong."
G
• (emphasis supplied)
~
24. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR .
120, a three-Judge Bench considered almost all leading
decisions on the point and observed that there was no difficulty
ii"J,-applying the principles laid down by the Privy Council and H
·'

1156 SUPREME COURT REPORTS [2009] 6 S.C.R.
)

A accepted by the Supreme Court. The Court, however, noted that
appellate courts found considerable difficulty in understanding
the scope of the words "substantial and compelling reasons"
used in certain decisions. It was observed inter-alia as follows:

"This Court obviously did not and could not add a condition
B to Section 417 of the Criminal Procedure Code. The
words were intended to convey the idea that an appellate
court not only shall bear in mind the principles laid down •
by the Privy Council but also must give its clear reasons
for coming to the conclusion that the order of acquittal was
c 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
D upon which the order of acquittal is founded; (2) the
principles laid down in Sheo Swarup case afford a correct
guide for the appellate court's approach to a case in
disposing of such an appeal; and (3) the different
phraseology used in the judgm~nts of this Court, such as,
E (i) 'substantial and compelling reasons', (ii) 'good and
sufficiently cogent reasons', and {iii) 'strong reasons' are
not intended to curtail the undoubted power of an appellate

F
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
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
G that the acquittal was not justified."
25. Again, in M.G. Agarwal v. State of Maharashtra (1963)
2 SCR 405, the point was raised before a Constitution Bench
1

-
of this Court. Taking note of earlier decisions, it was observed
as follows:
H
STATE OF RAJASTHAN v. YUSUF 1157
[DR. ARIJIT PASAYAT, J.]

A
" "17. In some of the earlier decisions of this Court,
however, in emphasising the importance of adopting a
cautious approach in dealing with appeals against
acquittals, it was observed that the presumption of
innocence is reinforced by the order of acquittal and so,
'the findings of the trial court which had the advantage of B
seeing the witnesses and hearing their evidence can be
reversed only for very substantial and compelling reasons':
vide Surajpa/ Singh v. State (1952 SCR 193). Similarly
" in Ajmer Singh v. State of Punjab (1953 SCR 418), it was
observed that the interference of the High Court in an c
appeal against the order of acquittal would be justified only
if there are 'very substantial and compelling reasons to do ·
so'. In some other decisions, it has been stated that an
order of acquittal can be reversed only for 'good and
sufficiently cogent reasons' or for 'strong reasons'. In D
appreciating the effect of these observations, it must be
remembered that these observations were not intended to
lay down a rigid or inflexible rule which should govern the
decision of the High Court in appeals against acquittals.
They were not intended, and should not be read to have
E
intended to introduce an additional condition in clause (a)
of Section 423( 1) of the Code. All that the said
observations are intended to emphasize is that the
approach of the High Court in dealing with an appeal
t
..... against acquittal ought to be cautious because as Lord
Russell observed in Sheo Swarup the presumption of F
innocence in favour of the accused 'is not certainly
weakened by the fact that he has been acquitted at his
trial'.' Therefore, the test suggested by the expression
'substantial and compelling reasons' should not be
construed as a formula which has to be rigidly applied in G
~ every case. That is the effect of the recent decisions of this
" Court, for instance, in Sanwat Singh v. State of Rajasthan
and Harbans Singh v. State of Punjab (1962 Supp 1

-
SCR 104) and so, it is not,necessary that before reversing
a judgment of acquittal, the High Court must necessarily H
1158 SUPREME COURT REPORTS [2009] 6 S.C.R.

~
A characterise the findings recorded therein as perverse."

(emphasis supplied)

26. Yet in another leading decision iri/Shivaji Sahabrao
Bobade v. State of Maharashtra (1973 (2) SCC 793) this Cqurt
B held that in India, there is no junsJictional limitation on the
powers of appellate court. "In law there are no fetters on the
plenary power of the appellate court to review the whole
evidence on which the order of acquittal is founded and, indeed,
it has a duty to scrutinise the probative material de nova,
c informed, however, by the weighty thought that the rebuttable
innocence attributed to the accused having been converted into
an acquittal the homage our jurisprudence owes· to individual
liberty constrains the higher court not to upset the holding
without very convincing reasons and comprehensive
D consideration."
27. Putting emphasis on balance between importance of
I
•. individual liberty and evil of acquitting guilty persons, this Court
\
observed as follows:·

E "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

F
the expense of social defence and to the soothing
sentiment that all acquittals are always gooc;I regardless -·
of justice to the victim and the communi'ty, demand
especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has
a public accountability. The cherished principles or golden
G thread of proof beyond reasonable doubt which runs thro'
the web of our law should not be stretched morbidly to ~
1..
embrace every hunch, hesitancy and degree of doubt. The
excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall
not suffer is a false dilemma. Only reasonable doubts
H
STATE OF RAJASTHAN v. YUSUF 1159
[DR. ARIJIT PASAYAT, J.]

belong to the accused. Otherwise any practical system of A
justice will then breakdown and lose credibility with the
community. The evil of acquitting a guilty person light-
heartedly, as a learned author (Glanville Williams in Proof
of Guilt) has saliently observed, goes much beyond the
simple fact that just one guilty person has gone unpunished. B
If unmerited acquittals become general, they tend to lead
to a cynical disregard of the law, and this in turn leads to
a public de.mand for harsher legal presumptions against
indicted 'persons' and more severe punishment of those
who are found guilty. Thus, too frequent acquittals of the c
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 0
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 chance possibilities as good enough to
set the delinquent free and chopping the logic of E
preponderant probability to punish marginal innocents."

(emphasis supplied)

28. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355,
the Court was considering the power of the High Court against F
an order of acquittal under Section 378 of the Code. After
considering the relevant decisions on the point it was stated
as follows: ~·

"9. The principles are now well settled. At one time it was
thought that an order of acquittal could be set aside for G
'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 H
1160 SUPREME COURT REPORTS [2009] 6 S.C.R.

A search for them were abandoned as a result of the
pronouncement of this Court in Sanwat Singh v. State of
Rajasthan (1961) 3 SCR 120. In Sanwat Singh case this
Court harked back to the principles enunciated by the Privy
Council in Shea Swarup v. R. Emperor and reaffirmed
B those principles. After Sanwaf 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.
c 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
D
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 Maharashtra (AIR 1974 SC 286), it has been said
that to the principles laid down in Sanwat Singh case may
E be added the further principle that 'if two reasonable
conclusions can be reached on the basis of the evidence
on record, the appellate court should not disturb the finding
of the trial court'. This, of course, is not a new principle. It
stems out of the fundamental principle of our criminal
-•
F jurisprudence that the accused is entitled to the benefit of
any reasonable doubt. If two reasonably probable and
evenly balanced views of the evidence are possible, one
must necessarily concede the existence of a reasonable
doubt. But, fanciful and remote possibilities must be left
G 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
preponderance of probability is all one way, a bare
H possibility of another view will not entitle the accused to
STATE OF RAJASTHAN v. YUSUF 1161
[DR. ARIJIT PASAYAT, J.]

claim the benefit of any doubt. It is, therefore, essential A
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."
B
(emphasis supplied)

29. In Ramesh Babula/ Doshi v. State of Gujarat (1996)
9 SCC -225, this Court said:
"While sitting in judgment over an acquittal the appellate C
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
0
the appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in view of
any of the above infirmities it can then-and then only-
reappraise the evidence to arrive at its own conclusions."
-I"
30. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 E
SCC 57, referring to earlier decisions, the Court stated:

"7. The paramount consideration of the court should be to
avoid miscarriage of justice. A miscarriage of justice which
may arise from the acquittal of guilty is no less than from
the conviction of an innocent. In a case where the trial court F
has tsiken a view based upon conjectures and hypothesis
and not on the legal evidence, a duty is cast upon the High
" Court to reappreciate the evidence in acquittal appeal for
the purposes of ascertaining as to whether the accused
has committed any offence or not. Probable view taken by G
\
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 sueh H
1162 SUPREME COURT REPORTS [2009] 6 S.C.R.

l'
A a finding."

31. In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85,
the trial court acquitted the accused but the High Court
convicted them. Negativing the contention of the appellants that
the High Court could not have disturbed the findings of fact of
B
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
c Code of Criminal Procedure the High Court could not
disturb the finding of facts of the trial court even if it found
that the view taken by the trial court was not proper. On
the basis of the pronouncements of this Court, the settled
position of law regarding the powers of the High Court in
D 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
.
E

F
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
l
miscarriage of justice which may arise from the acquittal
of the guilty is no less than from the conviction of an
G 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".
H
STATE OF RAJASTHAN v. YUSUF 1163
[DR. ARIJIT PASAYAT, J.]
32. In Harijana Thirupala v. Public Prosecutor, High Court A
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
has full power to review the evidence to reach its own
independent conclusion. However, it will not interfere with B
an order of acquittal lightly or merely because ol)e 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
would not be justified to interfere with order of acquittal C
merely because it feels that sitting as a. trial court it would
have proceeded to record a convi~tion; a duty is cast on
the High Court while reversing an order of acquittal to
examine and discuss the reasons given by the trial court
to acquit the accused and then to dispel those reasons. If D
the High Court fails to make such an exercise the judgment
will suffer from serious infirmity."
33. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12
SCC 606, this Court observed:
E
"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 F
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 G
paramount consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice
which may arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the H
1164 SUPREME COURT REPORTS [2009) 6 S.C.R.

A 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".

B 34. Again in Kallu v. State of M.P. (2006) 10 SCC 313,
this Court stated:

"8. While deciding an appeal against acquittal, the power
of the appellate court is no less than the power exercised
while hearing appeals against conviction. In both types of
c appeals, the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
D reverse the decision of the trial court merely because a
different view is possible. The appellate court will also
bear in mind that there is a presumption of innocence in
favour of the accused and the accused is entitled to get
the benefit of any doubt. Further if it decides to interfere,
it should assign reasons for differing with the decision of
E
the trial court."
(emphasis supplied)
35. From the above decisions, in Chandrappa and Ors.
F v. State of Kamataka (2007 (4) SCC 415), the following general
principles regarding powers of the appellate court while dealing
with an appeal against an order of acquittal were culled out:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
G which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
H before it may reach its own conclusion, both on
STATE OF RAJASTHAN v. YUSUF 1165
[DR. ARIJIT PASAYAT, J.]

questions of fact and of law. A
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail
B
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of "flourishes of language" to emphasise
the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own c
conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumptioQ ih
favour of the accused. Firstly, the presumption of D
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is
proved guilty by a competent court Qf law. Secondly,
the· accused having secured his acquittal, the E
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 F
by the trial court.
36. In our considered view it does not appear to be a case
where any interference is called for.
~
37. Appeal deserves dismissal, which we direct. G

D.G.· Appeal dismissed.