# STATE OF RAJASTHAN v. YUSUF

- **Citation:** [2009] 6 S.C.R. 1138
- **Court:** Supreme Court of India
- **Decided:** 2009-04-27
- **Case number:** Criminal Appeal No. 698 of 2003
- **Bench:** Dr. Arijit Pasayat, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-rajasthan-v-yusuf-25804
- **Pages:** 28

## Headnote

••
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
F
held the appellant guilty of offence punishable under
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 c
power of cross-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 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 G
Bihar 1983) 1 SCC 211; K. Ramachandra Reddy v. Public
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.
'(
State of Maharashtra v. KrishnamurtiLaxmipati Naidu (1980)
'f
A
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
c
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
statem~nt and if it

## Text

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[2009] 6 S.C.R. 1138
"'I
A
STATE OF RAJASTHAN
v.
YUSUF
(Criminal Appeal No. 698 of 2003)
B
APRIL 27, 2009
[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
F
held the appellant guilty of offence punishable under
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 c
power of cross-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 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 G
Bihar 1983) 1 SCC 211; K. Ramachandra Reddy v. Public
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.
'(
State of Maharashtra v. KrishnamurtiLaxmipati Naidu (1980)
'f
A
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
c
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
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; 1150D 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] [1150A-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
H proved to be guilty by a competent court of law.

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
relied on
Para 6
-
(1981) Supp. sec 25
relied on
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
G
(1989) 3 sec 390
relied on
Para 6
(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
(1979) 1 sec 355
relied on
Para 28
D
(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.
From the Judgment & Order dated 29.1.2002 of the High
G
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
B
to the judgment of a Division Bench of the Rajasthan High
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.
D
At about 1 O'clock on 25.2.1986 Smt. Sugra was thinking to
prepare lunch in the kitchen. Just then her husband accused
Yusuf entered in the house and asked her to get out of house.
t
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.
H
Site of occurrence was inspected on the day of occurrence
::
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 ·
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;
G
2.
the statement about the marital status.
3.
false implication of a large number of family
members of the accused.
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.
t
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
D
E
F
G
H
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 ))
(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.
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:
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)]
(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]
(vii) Merely because a dying declaration does not
•
STATE OF RAJASTHAN v. YUSUF
1149
'f
[DR. ARIJIT PASAYAT, J.]
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
B reliance on the dying declaration, the conclusions cannot be in
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
E is certainly not weakened but reinforced, reaffirmed and
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
G 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
(similarto Section 378 of the Code). At the time of hearing of
appeal before the High Court, it was contended on behalf of
H the accused that in an appeal from an order of acquittal, it was
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 c
different parts of India upon the question whether in an appeal
from an order of acquittal, an appellate court had the power to
interfere with the findings of fact recorded by the trial Judge.
Their Lordships thought it fit to clarify the legal position and
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
E
Code also made no distinction as regards powers of the High
Court in dealing with an appeal against acquittal and an.appeal
against conviction. Though several authorities were cited
revealing 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
4
India, that the High Court has no power or jurisdiction to
reverse an order of acquittal on a matter of fact, except in
cases in which the lower court has 'obstinately blundered',
or has 'through incompetence, stupidity or perversity'
reached such 'distorted conclusions as to produce a
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SUP~EME COURT REPORTS [2009] 6 S.C.R.
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)
·"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
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.]
"
A
and held that in an appeal against acquittal, the High Court has .
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 c
eyewitnesses.
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 twoF
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.
.. A the accused was acquitted by the trial court but was convicted
by the High Court in an appeal against acquittal filed by the
State. The aggrieved accused approached this Court. It was
contended by him that there were "no compelling reasons" for
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".
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21. Upholding the contention, this Court said:
"We think this criticism is well founded. After an order of
acquittal has been made the presumption of innocence is
further reinforced by that order, and that being so, the trial
court's decision can be reversed not on the ground that
the accused had failed to explain the circumstances
appearing against him but only for very substantial and
compelling reasons."
(emphasis supplied)
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
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
review the entire evidence and to come to its own
-
t
• ...
-
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 c
presumption of innocence with which the accused person
starts in the trial court continues even up to the appellate
stage and that the appellate court should attach due weight
to the opinion of the trial court which recorded the order
of acquittal.
•
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."
•
(emphasis supplied)
G
~
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
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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:
B
"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 not only shall bear in mind the principles laid down
•
by the Privy Council but also must give its clear reasons
c
for coming to the conclusion that the order of acquittal was
wrong."
The Court concluded as follows:
"9. The foregoing discussion yields the following results:
D
(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 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
court in an appeal against acquittal to review the entire
-
evidence and to come to its own conclusion; but in doing
F
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."
1 -
25. Again, in M.G. Agarwal v. State of Maharashtra (1963)
2 SCR 405, the point was raised before a Constitution Bench
of this Court. Taking note of earlier decisions, it was observed
H as follows:
STATE OF RAJASTHAN v. YUSUF
1157
[DR. ARIJIT PASAYAT, J.]
"
"17. In some of the earlier decisions of this Court,
A
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
t
approach of the High Court in dealing with an appeal
.....
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
G
construed as a formula which has to be rigidly applied in
~
every case. That is the effect of the recent decisions of this
"
Court, for instance, in Sanwat Singh v. State of Rajasthan
and Harbans Singh v. State of Punjab (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
the expense of social defence and to the soothing
-·
F
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
~
embrace every hunch, hesitancy and degree of doubt. The
1 ..
excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall
H
not suffer is a false dilemma. Only reasonable doubts
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 lightheartedly, 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
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SUPREME COURT REPORTS [2009] 6 S.C.R.
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
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.
Occasionally phrases like 'manifestly illegal', 'grossly
unjust', have been used to describe the orders of acquittal
which warrant interference. But, such expressions have
been used more as flourishes of language, to emphasise
the reluctance of the appellate court to interfere with an
order of acquittal than to curtail the power of the appellate
court to review the entire evidence and to come to its own
conclusion. In some cases (Ramaphupala Reddy v. State
of A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh v.
State of Maharashtra (AIR 1974 SC 286), it has been said
that to the principles laid down in Sanwat Singh case may
be 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
jurisprudence that the accused is entitled to the benefit of
any reasonable doubt.