Holding

The High Court was correct to acquit Dinesh; the appellate court may review evidence in an appeal against acquittal but must do so only for substantial and compelling reasons, which were present here.

Summary

The State of Uttar Pradesh appealed the acquittal of Dinesh, who had been convicted for murder under IPC s.302 and later acquitted by the Allahabad High Court. The High Court found material infirmities and contradictions in the testimony of two key eyewitnesses and noted that medical evidence contradicted the ocular accounts, rendering the prosecution's case unreliable. The appeal raised the question of the scope of the appellate court's power under Section 378 of the Criminal Procedure Code (CrPC) to set aside an acquittal. The Supreme Court reiterated that Section 378 imposes no legislative restriction on the appellate court’s power to re‑appreciate evidence, but that such power must be exercised with due regard to the double presumption of innocence and only for "substantial and compelling reasons". Applying these principles, the Court held that the High Court correctly identified material inconsistencies and that the appeal lacked merit, thereby dismissing it. The judgment also clarified the jurisprudence on appeals against acquittal, citing numerous precedents.

Issues considered

The scope of the appellate court's power under Section 378 CrPC to review and overturn an order of acquittal.
Whether the High Court erred in acquitting Dinesh on the basis of contradictions in eyewitness testimony and medical evidence.
The standard required (substantial and compelling reasons) for setting aside an acquittal.

Legislation cited

Code of Criminal Procedure, 1973s. 372, s. 373, s. 374, s. 375, s. 376, s. 378, s. 379, s. 380, s. 423
Indian Penal Code, 1860s. 302, s. 323, s. 441

Subjects

appeal against acquittalSection 378 CrPCpresumption of innocencemurderevidentiary contradictionsmedical evidence vs ocular testimonysubstantial and compelling reasonsappellate powers

Judgment

[2009] 2 S.C.R. 1175

STATE OF U.P. A
v
· DINESH
Criminal Appeal No. 1271 of 2001'
FEBRUARY 25, 2009
B
(DR. ARIJIT P~SAYAT AND DR. MUKUNDAKAM
SHARMA, JJ)
Code 'ot Criminal Procedure, 1973:
~-3?8(/w Article 136 of the Constitution -Appeal against c
acquittal - Scope of - Discussed - Keeping in view the
material infirmities and contradictions in evidence of witnesses
~nd discrepancies in ocular version and medical evidence,
High . Court rightly acquitted the accused - Penal Code, 1860
- s. 302 -:-- Evidenc.~. ~ Ocular version .vis-a-vis medical D
evidence -: .ConstitiJtioQ of India - Article 136.
The respondent along with another, namely, 'V'. was
charged with the offence of m.urder. The prosecution case
. was that when the complainant (PW-3) alongwith his
brother-in-law. and others were go_ing to deliver milk, on E
.f 'I. ·• ; : • ! ~ '. ·•

the way, the accused armed with pistols ancf knife came
out of the fields, caught hold of the brother-inlaw of PW-
• 3, took him into the fields and fired at him from their
pistols. The respondent also inflicted knife injuries to him.
The victim succumbed to the injuries. On the alarm raised F
by, PW~3, so.me persons from the nearby village came
there and t.he accused fled away. The motive for the
murder.was. told, fo be the dispute over a tractor., During
the pendency of the trial, accused 'V' died. The trial court
convicted the respondent of the offence charged and G
... sentenced him to imprisonment for life. The High Court
having acquitted the respondent, the State filed the .'<

appeal.

1175 H
1176 SUPREME COURT REPORTS [2009) 2 S.C.R.

A Dismissing the appeal, the Court
HELD: 1.1 Section 378 of the Code of Criminal
Procedure, 1973 makes it clear that no restrictions have
been imposed by the legislature on the powers of the
appellate court in dealing with appeals against acquittal.
8
In Chandrappa's case*, the Court has culled out the
general principles regarding powers of appellate court
while dealing with such an appeal. In case of acquittal,
there is a double presumption in favour of the accused. :.,
Firstly, the presumption of innocence is available to him
C 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
D weakened but reinforced, reaffirmed and strengthened by
the court acquitting him. [para 7-8] (1183-E; 1183-G-H]
*Chandrappa and Ors. v. State of Karnataka 2007 (2 )
SCR 630 =2007 (4) SCC 415 - relied on.
E Prandas v. State AIR 1954 . 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 :SGR 1285; Sanwat Singh v.
State of Rajasthan (1961) 3 SCR 120; M.G Agarwal v. State of
F Maharashtra (1963) 2 SCR 405; Shivaj{ Sahabrao Bobade v.
State of Maharashtra 1973 (2) SCC 793; K. Gopa/ Reddy v.
State of A.P (1979) 1SCC355; 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 M.P
G -(2002) 4 SCC 85; Harijana Thirupala v. Public Prosecutor,
High Court of A.P (2002) 6 SCC 470; Ramanand Yadav v. ~
Prabhu Nath Jha (2003) 12 SCC 606; Kal/u v. State of M.P
(2006) 10 sec 313 - referred to.
Shea Swarup v. R. Emperor (1934) 61IA398; Nur Mohd.
H v. Emperor AIR 1945 PC 151 - referred to.
I
(

I
STATE OF U.P. V. DINESH 1177

1.2 In the instant case, the discrepancies highlighted A,
by the High Court cannot be stated to be trival. The
conclusions arrived at by the High Court clearly establish
material infirmities and contradictions in the evidence of
the two vital witnesses, PWs. 3 and 4. It is true that PW.4
was a child of about 1O years, but the court found him to B
be in a position to depose. The High Court has found that
the presence of PW.3 at the spot, in view of certain aspects
highlighted in his cross-examination, is highly
improbable. Though ocular testimony of witnesses had
greater evidentiary value v·is-a-vis medical evidence, but c
when medical evidence totally improbablises the ocular
testimony, that becomes a relevant factor in the process
of evaluation of evidence. In the instant case, the med_ical
evidence totally improbablises the version regarding the
manner of assault by both the accused persons. There is 0
no merit in the appeal [para 34:.35] [1198-E-H; 1199-A-B] -
Case Law Reference
(1934) 61 IA 398 referred to para 10
AIR 1945 PC 151 referred to para 14 E
AIR 1954 SC 36 referred to para 15
1952 SCR 193 referred to para 17
1953 SCR 418 referred to para 18
F
AIR 1955 SC 807 referred to _para 20
(1955) 2 SCR 1285 referred to para 21
-(1961) 3 SCR 120 referred to para 22 .
(1963) 2 SCR 405 referred to - para 23 G

1973 (2) sec 793 referred to para 24
(1979) 1 sec 355 referred to para 26
(1996) 9 sec 225 referred to para 27 H
. 1178 SUPREME COURT REPORTS [2009] 2 S.C.R.

A (2002) 3 sec 57 referred to para 28
·,'' . . .
(2002) 4 sec 85 referred to para 29 ·
(2002) 6 sec 470 referred to· para 30
(2003) .12 sec 606 referred to· para 31.
B
· (2006)
.
10 sec 313 referred to. para 32
CRIMINALAPPELLATE JURISDICTION : CrlrnlhalAppeal
No. 1271of2001 " , ,
c From ttie Judg.ement and Order dated 01.05.2000 Of the
High Court of Judicature at Allahabad, Lucknow Bench; Lucknow
in Cr1:.Appeal No. 148 of 1996 · · · . .
Shall Kumar Dwiv_edi, Gunnam Venkateswara Rao,
.Sahdev Singh,'Vibha Dwivedi, for the Appeltatit.
D , .
Goodwill lndeevar, for the Respondent. ""
. ' .
The Judgement of the Court was delivered by
DR ARIJIT PASAYAT, J.
'E 1. Questioning correctness of the judgment of a Division
Bench of the f.llahabad High Court directing acquittal of the
respo11dent, this appeal has been filed by the Stat~ of Uttar
Pradesh: Learned iV Additional Sessions Judge, Lakhinipur,
Kheri, had .convicted the. respondent for offence punishable·
F .· under Section 302 of the Indian' Penal Code, 1860 (in short 'IPC')
~nd sentenced him·· for Hf~· imprisonment in Sessions Trial
No.469/92. " ...· ·.
'Jj.1

2. The prosecution versionJn a nutshell js as follo\Ns:

G Complainant s'lta S~r~n (PW 3) filed a written report Ex.
Ka-1 on 24.5.1991 .at P.S. Kotwali, stating that he is a resident .
of Mohammadpur, P.S. Kotwali, and his. sister is married to
Amritlal, Amkotwa (hereinafter referred to as the 'deceased').
Today on 24.5.1991 he was going with his brother-in-law (sister's
H 'husband) on a bicycle from village Saherua at AmkotWa after
STATE OF U.P. V. DINESH 1179
[DR ARIJIT PASAYAT, J.]

delivering milk to Amebarati Lal at village Saherua. He was A
accompanied by Ram Lakhan of Amkotwa and his nephew
Rajesh. When they reached near Habib's field from village.
Saherua, two persons named Dinesh, the respondent and Vinod,
belonging to village Amkotwa and armed with country made
pistol and knife. They caugl:lt of the complainant's brother-in- S
law, Amrit I-al witl:l hjs bicyde, took him into Habib's field saying
they would take revenge by murdering him. Vi nod and Dinesh
fired from the country made pistols at his brother-in~law who got
stuck arid fell down. Thereafter Dinesh assaulted him with a knife.
When the complainant raised alarm, Ramadhar, Prakash and c
others from village Baheiya came arid challenged the assailants,
who ran away towards Pachkotwa. On being· pursued by the
people, they.threatened them. Thereafter the complainant and
others gave up the chase. These persons murdered his brother-
in-law because his brother-in-law's brother Radhey shiam had
brought a tractor wbich was needed by Vinod: but his brother- D.
in-law would not ailow Vi nod to u.se it. It is for this reason that the
murder was committed. The dead body was lying in the field.
The incident took place at 1o.3d a.m.' On the basis ofthe above
written report, F. l.R. was written c:it P.S. Kotwali on 24.5.1991 at ·,
11.20 a.m. Thereafter the investigations in the case began. Sub- ~
Inspector Vishw.a Nath Pandey prepared the inquest Ex. Ka-2
at the site, photo of the dead body Ex. Ka-10 was taken,
specimen of the seal Ex. Ka-11. Memo for recovery of the bicycle
at the site, Ex. Ka-12, Memo Ex. Ka-13 for collecting ordinary
and blood stained soil from the- site. After completing·· F
investigations, charge sheet Ex. Ka-6 was filed against accused
Vinod and Dinesh.

Since the accused persons pleaded innocence, trial was
held.
G
During the pendency of the trial, accused Vinod. died on
7.2.1994. Eight persons were examined to furthef the .
prosecution version. PWs. 1 to 4 were stated to be eye-'
witnesses to the occurrence. During trial Om Prakash (PW 1)
and Ram Ohan (PW 2) resiled from their statements- made H
1180 SUPREME COURT REPORTS [2009] 2 S.C.R. '.

.,"'
A during investigation and, therefore, prosecution with the .f-
permission· of the court, ·cross-examined them. The trial -Court
found the evidence of Sita Saran and Rajesh Kunfar (PWs. 3
and 4) to be cogent and directed conviction as noted above.
The respondent field an appeal questioning the conviction as
8 recorded. The High Court noticed discrepanci~s in the evidence
of PWs. 3 and 4. PW 3 was related to the deceased while PW4
was his son who was aged about 10 years at the time of
occurrerice. The High Court noticed that motive is not of much
·~
importc;ince when credible evidence is available. If found that
c the motive highlighted was too feeble to be of any consequence.
Apart from that the High Court found presence of PW3 to be
highly improbable. It noticed that there was no sign of dragging
at the place of occurrence as was stated by PWs. 3 and 4 and
also there was no injury which could be co-related with dragging.
D All the injuries noticed were either incised injuries or on account
of firearm. The High CO'urt found that both PWs-3 and 4 stated
that respondent Dinesh and co-accused Vinod, who died, during
trial fired one shot each from the guns held by them. The doctor
· who conducted post-mortem found that there was only one fire
arm injury. To make up discrepancy PWs. 3 and 4 stated that
E
certain empty cartridges and two live cartridges were found at
the place of occurrence by the Investigating Officer. But the
Investigating Officer stated that he did not find either any empty
cartridge or live cartridge at the scene of occurrence. It is to be
further noted that both PWs 3 and 4 stated that while the
F deceased was being restrained by one hand each by the two
accused persons, they shot him from the other hand. In other
words, their version was that the accused persons fired at the
deceased from a very short distance. The doctor's evidence
clearly ruled out this aspect. He noticed that only skin deep injury
G was there and not any penetratingwound.PW.3 had stated that
all the knife injuries were inflicted when the deceased was in a _,),

lying posture and according to Rajesh Kumar (PW.4) even at ...
that time both the accused persons were catching hands of the
deceased. The doctor found that all the injuries found on the I

'
H deceased were incised wounds and not a single puncture wound
STATE OF U.P. V. DINESH 1181
[DR. ARIJIT PASAYAT, J.]

was found on the deceased. The doctor further stated that there A
~
was no possibility of the incised injuries Nos.1 to 13 being
caused to the deceased while he was lying on the ground.
To add to the vulnerability, the High Court pointed out that
according to SI PW.7 Vishwanath Pandey inquest was
B
completed around noon time and the dead body was sent to
the Mortuary at 1.45 p.m. on 24.5.1991. According to PW.3 Sita
Saran, she had accompanied the dead body to the mortuary.
~ The post-mortem examination was, however, conducted at
about 3.00 p.m. on 25.5.1991. From the perusal of the records
the High Court noticed that the papers were received at the
c
mortuary on 25.5.1991 around 12.30 p.m. The High Court found
it improbable that only the dead body was purportedly sent but
no documents were sent.
The High Court further found that there were several D
circumstances which belied prosecution claim that the FIR was
lodged on 24.5.1991.
3. Learned counsel for the appellant submitted that the
discrepancies highlighted by the High Court are not very material
E
to dis.card the prosecution version and the trial court's judgment
should have been upheld.

4. It would be appropriate to consider and clarify the legal
~ position first. Chapter XXIX (Sections 372-394) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code") F
deals with appeals. Section 372 expressly declares that no
appeal shall lie from any judgment or order of a criminal court
except as provided by the Code or by any other law for the time
being in force. Section 373 provides for filing of appeals in
certain cases. Section 374 allows appeals from convictions. G.
Section 375 bars appeals in cases where the accused pleads
guilty. Likewise, no appeal is maintainable in petty cases
(Section 376). Section 377 permits appeals by the State for
• enhancement of sentence. Section 378 confers power on the
State to present an appeal to the High Court from an order of H
1182 SUPREME COURT REPORTS [2009] 2 S.C.R.

A acquittal. The- said section is material and may be_.quoted in
j
extenso:
"378. Appeal in case of acquittal.-(1) Save as otherwise
provided in sub-section (2) and subject to the. provisions
of Sl,.Jb-sections (3) and (5), the State Government may, in
B
any case, dii-ect the Public Prosecutor to present an appeal
to the CHigh Court from an original: or appellate order of
- acquittal passed by any court other than a High Court, or
an orderof acquittal passed by the Court of Session in
. . --~·
;
rev1s1on.
c
(2) If such- an order of acquittal is passed in any case in
· which the offence has been investigated by the Delhi
Special Poi ice Establishment constituted ~under the Delhi
Special Police Establishmer:it Act, 1946 (25 of 1946), or
o~ by any other -~gency empowered to make 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.
E
(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 ... f

~
instituted upon complaint and the High Court, on an
F 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.

G (5) No application under sub-section (4) for the grant of
special leave to-appeal frortl an order of acquittal shall be
,,;.,
entertained by' the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days ·
in every other case, computed from the date of that order ~
I

of acquittal. . ·
H
STATE OF U.P. V. DINESH 1183
[DR. ARIJIT PASAYAT, J.]

(6) If, in any case, the application under sub-section (4) for A
the grant of specialleave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or under sub-section (2).
5. Whereas Sections 379-380 cover special cases of
appeals, other, Sections lay down procedure to be followed by B
appellate ·courts. · ·

6. -it ~ay be stated that more or less similar provisions ·
were found in the Code of Criminai Procedure, 1898 (hereinafter· ·
referred to as "the old: Code") which c~me up for consideration · c
before vario.us High Courts, Judicial Committee of the Privy
Council as also before.this Court. Since in the present appeal,
we have been called upon 'to decide the ambit and scope of the .
power of an appeU.ate court· in an appeal .against an order of
acquittal, we have cqnfined ou~selves to one aspect only i.e. an· 0
appeal against an order of acquittal. . '
· 7. Bare reading of.Section 378 of the Code (appeal in
case of acquittal) quoted above, makes it clear that no
restrictions have been imposed by the legislature on the powers
of the appellate court in dealing with appeals against acquittal. E
W_hen such an appeal is filed, the High Court has full power to
reappreciate, review and reconsider the evidence at large, the
material on which the order of acquittal is founded and to reach
its own conclusions on such evidence. Both questions of fact
and of law are open to determination by the High Court in an F
appeal against an order of acquittal.

8. It cannot, however, be forgotten that 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
fundame·ntal principle of criminal jurisprudence that every person G
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
strengthened by the trial court. H
1184 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 9. 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
consider some of the leading decisions on the point.
10. The first important decision was rendered by the
8
Judicial Committee of the Privy Council in Sheo Swarup v. R.
Emperor(1934) 61IA398). In Sheo Swarup the accused were
acquitted by the trial court and the local Government directed
the Public Prosecutor to present an appeal to the High Court
from an order of acquittal under Section 417 of the old Code
C (similar to Section 378 of the Code). At the time of hearing of
appeal before the High Court, it was contended on behalf of the
accused that in an appeal from an order of acquittal, it was not
open to the appellate court to interfere with the findings of fact
recorded by the trial Judge unless such findings could not have
D 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 the
evidence in the case and having formed an opinion of its weight
E 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 conflicting views
had been expressed by the High Courts in different parts of
India upon the question whether in an appeal from an order of
F acquittal, an appellate court had the power to interfere with the
findings of fact recorded by the trial Judge. Their Lordships
thought it fit to clarify the legal position and accordingly upon
the "humble advice of their Lordships", leave was granted by
His Majesty. The case was, thereafter, argued. The Committee
G 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 Court in dealing with
H an appeal against acquittal and an appeal against conviction.
STATE OF U.P. V. DINESH 1185
[DR. ARIJIT PASAYAT, J.]

Though several authorities were cited revealing different views A
~
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.
11. Lord Russel summed up the legal position thus:
B
"There is, in their opinion, no foundation for the view,
apparently supported by the judgments of some courts in
India, that the High Court has no power or jurisdiction to
reverse an order of acquittal on a matter of fact, except in
cases in which the lower court has 'obstinately blundered', c
or has 'through incompetence, stupidity or perversity'
reached such 'distorted conclusions as to produce a
positive miscarriage of justice', or has in some other way
so conducted or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked by the D
defence so as to produce a similar result."
12. 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
E
the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal
should be reversed. No limitation should be placed upon
that power, unless it be found expressly stated in the Code."

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

"But in exereising the power conferred by the Code and
before reaching its co'nclusions upon fact, the High Court
should and will always give proper weight and
consideration to such matters as (1) the views of the trial G
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 H
1186 SUPREME COURT REPORTS [2009] 2 S.C.R.

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 tbe appeal should and will act in
accordance with rules and principles well known and
B recognised in the administration of justice."
(ernphasis supplied)
14. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the
Committee reiterated the above view in Sheo Swarup (Supra)
c and held that in an appeal against acquittal, the High Court has
full powers· to reviewand to reverse acquittal.
15. So far a~ this. Gou~ 'is co~cemed, probab.ly the first
decision on the. point was Prandas v. State (AIR 1954 SC 36)
(though the case was decide~ 'on 14-3,-1f}50, it was reported
D only in 1954). In tnat. case, the accused was acquitted by the
trial court. The Provindal. 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
E eyewitnesses. ,
16. Upholding the decision of the High Court and following
the proposition of law in Shea Swarup (supra), a six-Judge
Bench held as follows:

F "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
a
417, Criminal Procedure Code, tO reverse judgment of
acquittal, unless the judgment is perverse or the
G subordinate court has in some way or other misdirected
itself soas. to produce a miscarriage of justice."
(emphasis supplied)
17. In Surajpal Singh v. State (1952 SCR 193), a two-
H · Judge Bench observed that it was well established that. in an
. '·

STATE OF U.P.:V: DINESH 1187
[DR. ARIJIT PASAYAT, J.]

appeal-under Section 417 of the (old} Code, the High Court A
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
by his acquittal by t.he trial court, .and the findings of the trial
court which had the advantage of seeing the witnesses and B
hearing their evidence could be reversed OfllY for very
substantial and compelling reasons.
· 1. 8. In AjmerSingh v. Sta(f! 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. C
The aggrieved accused approached this Court. It was
contended by him that there were ·ino compelling reasons" for
setting aside the order of acquittal and ·due and proper weight·
had not been given by the High Court to the opinion of the trial
court as regards the credibilify of witnesses seen and examined. D
If was also commented th~t the High Court committed an error
of law in obserV'ing th'at "when a strong 'prima facie' case is·
made out against an accused person it is hiS duty to explain the
circumstances app~arlng in evidence against him and he cannot
.take sh~lter behind the presumption of innocence and cannot E
state
.
that'
the Jaw
. . .".·
entitles him to keep his lips, sealed".
.1~ .. 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· F
further reinforced by that order, and that' being so, the trial
court'.s .decision can be reversed· not on the ground that
c.:.· the··accused had . failed:to explain the circumstances
·' · appearing againsf·him but ·only for very substantial and
compelling reasons." · · (emphasis supplied) G
20. In Alley v. State of UP (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 H
1188 SUPREME COURT REPORTS [2009) 2 S.C.R.

A Procedure Code came to the conclusion that the judgment
of acquittal under appeal was perverse it could not set·
. aside that or.der. · ·

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 .
B
review the entire evidence and to. come to its· own
conclusion, of course, keeping in view the well-established
rule that the presumption of innocence of the accused is
not weakened butstrengthened by the judgment of acquittal
· passed by the trial court which had the advantage o.f
c observing the demeanour of witnesses whose evidence
have been recorded in its presence.
. .
It is also well settled that the court of appeal has as wide.
powers of appreciation of evidence in an appeal against
D. · an order of acquittal as in the case of an appeal against
an. order of conviction, subject to the riders that the .I.

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 opin,ion of the trial court which recorded the order of
E
acquittal.
If the appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary conclusion,
the judgment cannot be said to have been vitiated."
F (emphasis supplied)
. 21 .. In Aher Raja Khima v. State of Saurashtra (1955) 2
SCR 1285) the accused was prosecuted under Sections 302
and 441 IPC.' Hewas acquitted by the trial court but convicted
by the)-f ig.tl CQurt. Dealing with the power of the High Court
G agai.~st an oid'er of acquittal, Bose, J. speaking for the majority
(2:1) stated: (AIR p. 220, para 1) "It is, in our opinion, well settled
that it is not enough for the High Court to take a different view of
the evidence; there must also be substantial and compelling
reasons for holding that the trial court was wrong."
H (emphasis supplied)
STATE OF U.P. V. DINESH 1189
[DR. ARIJIT PASAYAT, J.]

22. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR ·A
120, a three-Judge Bench considered almost all leading
decisions on the point and observed that there was no difficulty
in applying the principles laid down by the Privy Council and · ··
accepted by the Supreme Court. The Court, however, noted that
appeUC3te courts found considerable difficulty in understanding B
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
to Section 417 of the Criminal Procedure Code. The words
were intended to convey the idea that an appellate court C
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
wrong."
D
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
principles laid down in Shea Swarup case afford a correct E
guide for the appellate court's approach to a case in
disposing of such an appeal; and (3) the different
phraseology used in the judgments of this Court, such as,
(1) 'substantial and compelling reasons', (ii) 'good and
sufficiently cogent reasons', and (iii) 'strong reasons' are F
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 G
· · 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."
23. Again, in M.G Agarvvalv. State of Maharashtra (1963) H
1190' SUPREME COURT REPORTS [2009] 2 S.C.R.

A ,2 SCR 405, the point was raised before· a· Constitution Bench
··ofthis Court. Taking note of·earlierdecisions, itwas observed
as follows: · ' ·

"17. In some of the earlier decisions of .this.Gourt, however,
in ~mphasising the importance of adopting ·a cautious
8
approach in dealing wi~h .appeals against; acquittals, it
was observed that the presum'ption of innocence is
.reinforced by the order:of acquittal and so .. ;the findings of
the trial court which had· the advantag~ of seeing the
witnesses C1nd hearing their evidence can be reversed
c only for very .substantial and compelling re(lSOns'.: \(ide
Surajpal Singh,v. State (1952SCR1.93). Similarly in Ajmer
Singh v. State of PunjabJt95~ SQR 418), it.was ob~erve.d .
that th~ interference of the. High Court in. an appeal ag;;:iinst
the order .of acquittal would be fustified only !f there are
D 'very substantial ar.d c.ompelling reasons to do so'. In some
other decisions, it.has b.eer:i stated that an orderqf acquittal
can be. reyersed only for 'go.od and sufficiently .cogent
reasons'.or for 'strong reasons'. In a,ppreciating th~ effect
of. these observations, it must be remembered that these
E observ.ations were not intended to; lay' down a rigid 'or
inflexible rule wt"lich should govern .thE:l deci:=;ion ~f the Hig.h.
Court in appeals against acquittals'. They. were not .
intended, and should not be read to have intended to
introduce an ad<;iitional condition in clause (a) of section
F 423(1) of the Code . .All thatt~e said .observa.ti.on~ are -
intended to .emprasize is,~hat the approach .of the High
Court in dealing with an appeat~gainst acqui~t~l .ought to
be cautious because as Lord Russell ..observed, .in .Sheo
Swa;up fhe p~es4mP,tion of· innqcence in.fa~qµ,r. of.the .
.G . ~ccus:ed '.is not certainly weaken.edJ>y.~hEl fa~U~atti.e has
been ~cquitted at his trial'. Therefore, the test suggested
. by the expression 'substantial and compelling reason~·
should not be construed as a form-uia ·which has to b~ .
rigidly applied in every case. That is the effect of the recent
decisions of this Court, for instance, in Sanwat Singh v.
H
'·-.,_ STATE OF U.P. V. DINESH 1191
[DR. ARIJIT PASAYAT, J.]

~. State of Rajasthan and Harbans Singh v. State of Punjab A
(1962 Supp 1 SCR 104) and so, it is not necessary that
before reversing a judgment of acquittal, the High Court
must necessarily characterise the findings recorded
therein as perverse." (emphasis supplied)
8
24. Yet in another leading decision in Shivaji Sahabrao
Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court
held that in India, there is no jurisdictional limitation on the powers
...
of appellate court. "In law there are no fetters on the plenary
power of the appellate court to review the whole evidence on
. which the order of acquittal is founded and, indeed, it has a duty c
to scrutinise the probative material de nova, informed1 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 D
· reasons and comprehensive consideration."·
.
25_. Putting emphasis on balance between importance of
individual liberty and evil of acquitting guHty-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 benefifof doubt at
the expense of social defence and to the soothing F
"
J 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 jmf.icial instrument has a public
accountability. The cherished principles or golden thread
G
}
of proof beyond reasoriable 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.
{
men may go but one innocent martyr shall not suffer is a
H
1192 SUPREME COURT REPORTS [2009] 2 S.C.R.
'
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
learned author (Glanville Williams in Proof of Guilt) has
B saliently observed, goes much beyond the simple fact that
just one guilty per$On 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
c 'persons' and more severe punishment of those who are
found guilty. Thus, too frequent acquittals of the guilty may
lead to a ferocious peri~l 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
D 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
chance possibilities as good enough to set the'delinquent
E
free and chqpping the logic of preponderant probability
to punish marginal innocents." (emphasis supplied)
\
j

26. In K. Gopal Reddy v. State ~f A.P (1979) 1 SCC 355, • I

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 search for them
. ,._

H were abandoned as a result of the pronouncement of this t

,
STATE OF U.P. V. DINESH 1193
[DR. ARIJIT PASAYAT, J.]

Court in Sanwat Singh v. State of Rajasthan (1961) 3 A
SCR 120. In Sanwat Singh case this Court harked back
to the principles enunciated by the Privy Council in Sheo
Swarup v. R. Emperor and reaffirmed those principles.
After Sanwat Singh v. State of Rajasthan this Court has
consistently recognised the right of the appellate court to B
review the entire evidence and to come to its own
conclusion bearing in mind the considerations mentioned
by the Privy Council in Sheo Swarup case. Occasionally
phrases like 'manifestly illegal', 'grossly unjust', have been
used to describe the orders of acquittal which warrant C
interference. But, such expressions have been used more
as flourishes of language, to emphasise the reluctance of
the appellate court to interfere with an order of acquittal
than to curtail the power of the appellate court to review
the entire evidence and to come to its own conclusion. In D
some cases (Ramaphupala Reddy v. State of A.P., (AIR
1971 SC 460) Bhim Singh Rup Singh v. State of
Maharashtra (AIR 1974 SC 286), it has been said that to
the principles laid down in Sanwat Singh case may be
added the further principle that 'if two reasonable E
conclusions can be reached on the basis of the evidence
on record, the appellate court should not disturb the finding
of the trial court'. This, of course, is not a new principle. It
stems out of the fundamental principle of our criminal
jurisprudence that the accused is entitled to the benefit of F
any reasonable doubt. ·If two reasonably probable and
evenly balanced views of the evidence are p_ossible, 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 ~II ·one way, a bare H
1194 SUPREME COURT REPORTS [2009] 2 S.C.R.

A possibility of another view will nc;>t entitle the. accused to
claim the benefit of any doubt. It is, therefore, essential
that any view of the evidence in favour of the accused
must be reasonable even as any doubt, the benefit of ·
which an accused person may. claim, must be
B reasonable." (emphasis supplied)

27. 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
D 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." .

E 28. In Allarakha K. Mansuri v,. State of Gujarat(2002) 3
SCC 57, referring to earlier decisions, the Court stated: -
"7; The -paramount consideration of the court should be to
avoid miscarriage of justice. A miscarriage ·of justice which
may arise from the acquittal of g!..lilty is no less than from
F
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
up9_n the High Court to reapprecia'te the evidence in
acquittal appeal for the purposes of ascertainin·g as to
~ G
whether ttie accused h·as committed any offence or not.
Probable view taken by the trial court which may not be
disturbed in the appeal is such a view which is based
_upon legal and admissible evidence. Only because the
H accused-has been acquitted by the trial court, cannot be
STATE OF U.P. V. DINESH 1195
[DR. ARIJIT PASAYAT, J.]

·~ made a ba_~is to urge that the High Court under all A
~
circumstances should not disturb such a finding."
29. 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
B
Court could not have disturbed the findings of fact of the trial
court even if that view was not correct, this Court observed:

"7. We do not agree with the submissions of the learned
_.. counsel for the appellants that under Section 378 of the
Code of Criminal Procedure the High Court could not c
. disturb the finding of fads of the trial court even if it found·
-<
that the view ta~en by the trial court was not proper. On the
basis of the pronouncements of this Court, the settled
position of law regarding the powers of the High Court in
an appeal against an order of acquittal is that the Court D
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 t~e presumption of innocence in favour of the
accused is reinforced. The golden thread which runs E
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
Im!
and the other to his innocence, the view which is favourable
to the accused should be adopted. Such is not a jurisdiction F
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 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
1196 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 30. In Harijana Thirupala v. Public Prosecutor, High Court }.
,
._.'
of A.P (2002) 6 sec 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
B
independent conclusion. However, it will not interfere with
an order of acquittal ligh'tly 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
c '
l~
woul(j 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
D 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."
31. 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
F further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal
cases is !hat 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 yiewwhich is favourable
G to the accused should be adopted. The paramount
consideration of the court is to ensure that miscarriage of ~

justice is prevented. A miscarriage of justice which may
\.
arise from acquittal of the guilty is no less than from the

H
conviction of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon the appellate
-
•
STATE OF u·.P. V. DINESH 1197
[DR. ARIJIT PASAYAT, J.]
I
court to reappreciate the evidence in a case where the A
.., accused has been acquitted, for the purpose of
ascertaining as to whether any of the accused committed
any offence or not".
...' 32. Again in Kallu v. State of M.P (2006) 10 SCC 313,
B
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
appeals, the power exists to review the entire evidence. c
_,. 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 dn evide'nce
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a D
different view is possible. The appellate court will also
a
bear in mind that there is presumption of innocence in
favour of the accused and the accused is entitled to get
the benefit of any doubt. Fu.rther if it decides to interfere,
it should assign reasons for differing with the decision of
E
the trial court." (emphasis supplied)
33. From the above decisions, in Chandrappa and Ors.
v. State of Karnataka (2007 (4) SCC 415), the following general
._
'~
principles regarding powers of the appellate court while dealing
with an appeal against an order of acquittal were culled out: F
(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal
is founded.

(2) The Code of Criminal Procedure, 1973 puts no
G
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.

(3) Various expressions, such as, "substantial and
..
1 •·
compelling reasons", "good and sufficient grounds'\ "very strong H
1198 SUPREME COURT REPORTS [2009] 2 S.C.R.

\.
A circumstances", "distorted conclusions", "glaring mistakes", etc. .
.

are not intended to curtail extensive powers of an appellate court ~

in an appeal against acquittal. Such phraseologies are more in
the nature of "flourishes of language" to emphasise the reluctance ·
of an appellate co~rt to interfere with acquittal than to curtail _the
B power of the court to review the evidence and to come to its
own conclusion.
(4) An appellate court, however, must bear in mind1hat in
case"of acquittal, there is double presumption in favour of the
\
accused. Firstly, the presumption of innocence is available to
.
C,, him under the fundamental principle of criminal jurisprudence
.
that every person shall be presumed to be innocent unless he is t-
I
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
D court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not disturb
the finding of acquittal recorded by the trial court.

E 34. In the instant case the discrepancies highlighted by
the High Court cannotbe stated to be trival. The conclusions
arrived at by the High Court clearly establish material infirmities
and contradictions on the evidence of the two vital witnesses
PWs. 3 and 4. It is true that PW.4 was a child of about 10 years. ~ ~

F But the-court had found him to be in a position to depose. But
the High Court has found that the presence of PW.3 at the spot
is highly improbable in view of certain aspects highlighted. One
. of them was his claim to have accompanied the deceased to
the house of one Barati Lal for delivering milk in a Milk Can. In
G his cross-examination he admitted that he does not know where
the house pf the Barati Lal is. According to him, he and the
deceased were returning after delivering the milk in a Can and ~

the Can was tied to the cycle on which both. of them were
travelling_, The Investigating Officer admitted that there was no....
. ·. -H Can lying at the place of occurrence and in fact no seizure of
STATE OF U.P. V. DINESH 1199
[DR. ARIJIT PASAYAT, J.]

any Milk Can has been made. Apart from that the medical A
evidence clearly rules out the manner of infliction of injuries as
deposed. Though ocular testimony of witnesses had greater
evidentiary value vis-a-vis medical evidence, but when medical
evidence totally improbablises the ocular testimony, that
becomes a relevant factor in the process of evaluation of B
evidence. In the instant case the medical evidence totally
improbablises the version regarding the manner of assault by
both the accused persons as noted above.
'·

35. Above being the position, we find no merit in this C .
appeal, which is accordingly dismissed.

R.P. Appeal dismissed .

.