PETITIONER:
AHER RAJA KHIMA
Vs.
RESPONDENT:
THE STATE OF SAURASHTRA.
DATE OF JUDGMENT:
22/12/1955
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
AIYYAR, T.L. VENKATARAMA
AIYAR, N. CHANDRASEKHARA
CITATION:
1956 AIR 217 1955 SCR (2)1285
ACT:
Appeal against Acquittal–Scope of–Powers of Court-Guiding
principles–Code of Criminal Procedure (Act V of 1898), s.
417.
HEADNOTE:
Per BOSE, and CHANDRASEKHARA AIYAR JJ. (VENKATKRAMA AYYAR
J. dissenting). It is well settled that the High Court
should not set aside an order of acquittal under s. 417 of
the Code of Criminal Procedure simply because it differs
from the trial Court as to the appreciation of the evidence;
there must be substantial and compelling reasons for doing
so. Where the trial Court takes a reason. able view of the
facts of the case, interference is not justifiable unless
there are really strong reasons for holding otherwise.
Amar Singh v. State of Punjab ([1953] S.C.R. 418) and
Surajpal Singh v. State ([1952] S.C.R. 193), referred to.
The accused in a criminal case must be given the benefit
of every reasonable doubt and, therefore, when he offers a
reasonable explanation of his conduct, although he cannot
prove it, that explanation should ordinarily be accepted
unless the circumstances indicate that it is false.
Consequently, in a case where an accused person, charged
under SS. 302 and 447 of the Indian Penal Code, repudiated
his confession at the earliest opportunity as having been
made under Police threats administered to him at night while
in jail custody and there was evidence to show that the
Police had access to him there, and there was nothing to
displace his statement that he was threatened by them, the
finding of the Sessions Judge that the confession was not
voluntary in character was fair and reasonable and in the
absence of any compelling reason the High Court should not
have set aside the order of acquittal.
1286
As the evidence otherwise was insufficient to warrant a
conviction the accused was acquitted.
Per VENKATARAMA AYYAR J. This is not a case in which the
Supreme Court should interfere under Art. 136 of the
Constitution. The Constitution by specifically providing
for an appeal on facts under Art. 134(1) intended to exclude
it under Art. 136 and like the Privy Council this Court will
not function as a further Court of appeal on facts in
criminal cases.
The fact that the appeal in the High Court was one against
an order of acquittal makes no difference as the powers of
an appellate Court are the same in all appeals, whether
against acquittal or against conviction.
Pritam Singh v. The State ([1950] S.C.R. 453), Sheo Swarup
v. King-Emperor ([1934] L.R. 61 I.A. 398) and Nur Mohammad
v. Emperor (A.I.R. 1945 P.C. 151), relied on.
The expression “compelling reasons” used in Surajpal
Singh’s case should be read only in the context of that case
and should not be treated as a rigid formula so as to
restrict the powers of the Court, or the right of appeal
conferred on the State by s. 417 of the Code or to place a
judgment of acquittal in a position of vantage and give the
accused a protection which the law does not afford to them.
Such a formula can be of use only as guiding principle for
the appellate Courts in deter-mining questions of fact.
Surajpal Singh v. The State ([1952] S.C.R. 193),
considered.
Consequently, the findings arrived at by the High Court
were not open to review by this Court under Art. 136 of the
Constitution and as there was evidence apart from the
retracted confession to support the view, it had taken on
merits, the appeal must be dismissed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 64 of
1955.
On appeal by special leave from the judgment and order
dated the 27th February 1954 of the Saurashtra High Court at
Rajkot in Criminal Appeal No. 108 of 1953 arising out of the
judgment and order dated the 5th March 1953 of the Court of
Sessions Judge, Halar Division in Sessions Case -No. 26 of
1952.
V. N. Sethi, for the appellant.
R. Ganapathy Iyer and R. H. Dhebar, for the respondent.
1955. December 22.
BOSE J.-The only question in this appeal is whether the High
Court bad in mind the principles
1287
we have enunciated about interference under section 417 of
the Criminal Procedure Code when it allowed the appeal filed
by the State against the acquittal of the appellant. 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: Amar Singh v. State of
Punjab(1) and if the trial Court takes a reasonable view of
the facts of the case, interference under section 417 is not
justifiable unless there are really strong reasons for
reversing that view: Surajpal Singh v. State(2).
The appellant was prosecuted under sections 302 and 447 of
the Indian Penal Code for the murder of Aher Jetha Sida. It
is not necessary at the moment to set out the facts. It is
enough to say that the High Court based its conviction on a
retracted confession plus certain circumstances which the
learned Judges regarded as corroborative.
The learned Sessions Judge excluded the confession on the
ground that it was neither voluntary nor true. The learned
Judge’s reasoning about its falsity is weak. We do not
think there is material on which a positive finding about
its falsity can be reached but *hen he says that he is not
satisfied that it was made voluntarily we find it impossible
to hold that is a view which a judicial mind acting fairly
could not reasonably reach.
The facts about that are as follows. The offence was
committed during the night of the 18th/19th May 1952. The
police were informed on the 19th morning at 9-30. The
police station was only 4 miles distant and they started
investigation immediately. The appellant was arrested on
the 20th. He says in his examination under section, 342,
Criminal Procedure Code, that three other persons were also
arrested but were later released. They are Bhura, Dewayat
and Kana. The investigating officer was not examined, so he
could not be asked about this and the point could not be
developed further. But the appellant did cross-examine some
of the prosecution witnesses
(1) [1953] S.C.R. 418, 423.
(2) [1952] S.C.R. 193, 201,
1288
about this and elicited contradictory replies. Kana, P.W.
4, said-
“I was not arrested. Dewayat, Barat Lakhmansingh was
arrested first…….. All the three of us were released the
same evening. We were not put under arrest at all”.
Dewayat, P.W. 5, denied that either he or any of the
others were arrested and Maya, P.W. 15, said the same thing
but Meraman, P.W. 11, insisted that Dewayat was arrested.
In the absence of the SubInspector it is difficult to say
definitely that the appellant is wrong. It is evident that
the others were at least suspected, especially as one of the
points made against the appellant is that he was seen
sharpening an axe on the evening of the murder and Meraman,
P.W. II, says that not only was the appellant sharpening an
axe but so was Dewayat. If this was a matter of suspicion
against the appellant it must equally have been so against
Dewayat and accordingly there is nothing improbable in the
appellant’s statement about these other arrests; and as the
SubInspector was not there to clear up the matter it is only
fair to accept what the appellant says.
The appellant was sent to a Magistrate at 8 p.m. on the
21st for the recording of a confession but the Magistrate
did not record it till the 3rd of June. He was examined as
P.W. 21 and explained that be gave the appellant ten days
for reflection. The length of time is unusual but no
objection about its fairness to the accused could reasonably
have been raised bad it not been for the fact that the
judicial lock-up is in charge of a police guard which is
under the direct control, orders and supervision of the very
SubInspector who had conducted the investigation and had
earlier suspected and, according to the accused, actually
arrested three other persons; and two of them are now called
as prosecution witnesses to depose against the appellant
about a matter on which the prosecution lay great
importance, namely the sharpening of an axe. The danger
that they might exaggerate their stories or give false
evidence in their anxiety to avert further suspicion from
themselves is
1289
one that cannot be overlooked.
But apart from that. This is the description of the
judicial look-up which the Magistrate who recorded the
confession (P.W. 21) gives us:
“A police guard is on 24 hours duty at the Bhanwad
Judicial lock-UP. The prisoner is so placed within the
compound wall that he can see the police all the 24 hours
through the bars and can talk. These police officers are
under the police Sub-Inspector. A peon is working as
warder. He stays there on duty by day. At night he is not
there.
Clerk Jailor does not remain present there. The police
lock-up is within the ail itself. Inside the jail gate is
the police lock-up. The police can go into the police lock-
up when they choose”.
Now the appellant repudiated his confession at the
earliest opportunity. He told the Committing Court on
12-12-1952 in a written statement that-
“After my arrest by the police I was sent to jail. At
night time the police, having arrived at the jail,
threatened me to make confession before Court as they
directed. The police frightened me with beating if I did
not confess. As a result of which, through fright, I have
made a false confession as directed by the police and which
I now deny”.
And in his examination under section 342, Criminal
Procedure Code, he said-
“I have made the confession because the police were
threatening to beat me in the jail.
He repeated these statements in the Sessions Court. He
said he was beaten at the time of his arrest and then after
he had been sent to the jail he said-
“I was daily threatened. They said ‘confess the offence
of murder. We shall get you on remand. You will live as an
impotent man’. On the morning of the 3rd date, they took me
to a big police officer after administering extraordinary
threats. Only now I come to know that he is the
Magistrate”..,
Now it may be possible to take two views of this statement
but there are two important factors in every criminal trial
that weigh heavily in favour of an accused person,: I one is
that the accused is entitled
1290
to the benefit of every reasonable doubt and the other., an
off-shoot of the same principle, that when an accused person
offers a reasonable explanation of his conduct, then, even
though be cannot prove his assertions, they should
ordinarily be accepted unless the circumstances indicate
that they are false. What the appellant said in this case
is not impossible; such things do happen and it is
understandable that the police, frustrated in their
endeavour to find the culprit among three other persons,
should make an all out endeavour to make sure of the fourth.
We do not say that happened here. But that it might have
happened is obvious, and when the police absent themselves
from the witness box and forestall attempts at cross-
examination, we find it impossible to hold that a judge
acting judicially, and hearing in mind the important
principles that we have outlined above, can be said to have
reached an unreasonable or an unfair conclusion when he
deduces from these circumstances that there is a reasonable
probability that the appellant’s story is true and that
therefore the confession was not voluntary.
The only reason that the learned High Court Judges give
for displacing this conclusion is that
“in Saurashtra…….. though judicial and police lock-
ups are placed under a common guard the judicial lock-ups
are in charge of Magistrates and are looked after by their
clerks and peons, who are assigned the duties of jailors and
warders respectively” and they conclude-
“It is therefore difficult to say that the police could
have effectively threatened him”.
But what the learned Judges overlook is the fact that this
control is only effective during the day and that at night
neither the peon nor the clerk is there; and even during the
day the “clerk-cum-jailor does not remain present there”.
The appellant said in his written statement that “at night
time the police, having arrived at the jail, threatened me,
etc”. There is nothing on the record to displace this
statement. Had the Sub-Inspector or some policeman been
examined as a witness and had the appellant omitted to
1291
cross-examine him about this, that might have raised an
inference that what the accused said was only an
afterthought. But here we find that this defence about the
involuntary nature of the confession due to threats by the
police was raised at the outset, even in the Committing
Magistrate’s Court, and was persisted in throughout and the
appellant did what he could to build up this part of his
case by cross examining the only official witness who did
appear, namely the Magistrate who recorded the confession;
and he succeeded in establishing that there was ample
opportunity for coercion and threat. The fact that this
defence was raised in the Committal Court should have put
the prosecution on its guard and the absence of refutation
in the Sessions Court is a matter that can legitimately be
used in the appellant’s favour. In the circumstances, we do
not think the High Court has squarely met the learned
Sessions Judge’s reasoning and shown that there are compel-
ling reasons for holding that he was wrong; on the contrary,
the learned Sessions Judge’s hesitation is grounded on well
established judicial principles.
Now the law is clear that a confession cannot be used
against an accused person unless the Court is satisfied that
it was voluntary and at that stage the question whether it
is true or false does not arise. It is abhorrent to our
notions of justice and fair play, and is also dangerous, to
allow a man to be convicted on the strength of a confession
unless it is made voluntarily and unless he realises that
anything he says may be used against him; and any attempt by
a person in authority to bully a person into making a
confession or any threat or coercion would it once
invalidate it if the fear was still operating on his mind at
the time he makes the confession and if it “would appear to
him reasonable for supposing that by making it he would gain
any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him”: section 24 of the
Indian Evidence Act. That is why the recording of a
confession is hedged around with so many safeguards and is
the
163
1292
reason why magistrates ordinarily allow a period for
reflection and why an accused person is remanded to jail
custody and is put out of the reach of the investigating
police before he is asked to make his confession. But the
force of these precautions is destroyed when, instead of
isolating the accused from the investigating police, he is
for all practical purposes sent back to them for a period of
ten days. It can be accepted that this was done in good
faith and we also think that the police acted properly in
sending the appellant up for the recording of his confession
on the 21st; they could not have anticipated this long
remand to so-called “jail custody”. But that is hardly the
point. The fact remains that the remand was made and that
opened up the very kind of opportunities which the rules and
prudence say should be guarded against; and, as the police
are as human as others, a reasonable apprehension can be
entertained that they would be less than human if they did
not avail themselves of such a chance.
If the confession is excluded, then there is not, in our
opinion, sufficient evidence against the appellant on which
a conviction can be based.
It will now be necessary to set out the facts.
The murdered man is one Jetha. He married Sunder, P.W. 3,
about three years before he was killed, but we gather that
she had not gone to live with her husband; anyway, she was
living in the appellant’s village Shiva with her people at
the time of the occurrence and this afforded the pair
opportunities for a long continued course of illicit amours,
chances which it seems they were not slow to seize. The
husband lived in a village Kalawad which is three miles
distant. At the time of the murder arrangements were being
made for Sunder to go to her husband and preparations for
the ceremonial appropriate to such occasions were in the
course of progress. The prosecution case is that this was
resented by the appellant who wanted the girl for himself;
so he went to the husband’s village Kalawad on the night of
the 18th/ 19th and murdered him with an axe which the prose-
1293
cution say belongs to him and which they say he later
produced.
Both Courts hold that the motive is proved; and that can be
accepted.
Next comes the evidence about the sharpening of the axe on
the evening of the 18th at Kana’s house in the village
Shiva. The axe was produced in Court and Dewayat (P.W. 5)
tells us that it was blunt. Now there is nothing suspicious
or unusual in a villager sharpening a blunt axe and, as we
have pointed out, Meraman (P.W. 11) says that Dewayat was
also sharpening an axe at the same time and place; and
Dewayat is one of the other three against whom suspicion was
directed; also, the fact that the axe was sharpened in this
open way in the presence of a number of persons, including
two strangers to the village, (the two Satwara witnesses,
P.Ws. 9 and 10), points to innocence rather than guilt.
But the prosecution do not rely on this alone. Their
witnesses say that when the appellant was asked why he was
sharpening his axe (Dewayat does not seem to have been put a
similar question though he was doing the same thing) he
replied that he wanted to offer a green coconut to Lord
Shanker. All the witnesses are agreed that this has no
special significance and that they attributed no sinister
meaning to it at the time. It has acquired significance
only in the light of after events.
Even here, there seems to us to be some danger that what
the appellant really said has got mixed up, with what these
witnesses say and, no doubt, honestly believe he said. We
say this because Sunder, P.W. 3, and her mother Vali, P.W. 2
tell us that the appellant came to the mother that evening
and offered her eight annas in lieu of a coconut. It seems
that this is a customary offering given by relatives when a
daughter leaves her parents’ home for her father-in-law’s
place. The appellant is distantly related to Sunder and so
such an offering would be normal, and as it was made the
same evening, apparently shortly after the other incident,
we think there is a strong probability that his remark about
the offering of a
1294
coconut had reference to this and was later thought to have
reference to a vow: the sort of mistake that persons
reconstructing a crime might easily make and then honestly
believe; and we are the more prone to think that this was
what probably happened because the conduct attributed to the
appellant is so unlike that of a murderer deliberately
planning a cold blooded crime while, on the other band, it
is wholly consistent with innocence. A reasonable doubt
arises and the appellant is entitled to its benefit.
Next comes the evidence of Samant, P.W. 16, who says that
be saw the appellant that night on the outskirts of Kalawad
where the murder was committed. He was wearing a false
beard and a mask. That of course is an important piece of
evidence but the danger of mistaking the identity of a man
so disguised at night cannot be disregarded, especially as
this witness qualified his statement at the end of his
cross-examination by saying: “The person was just like him”.
It is evident to us that his statement about identity is not
based on his recognition of the appellant but on the fact
that he saw a man who looked like the appellant and so, when
he found that the appellant was under suspicion, he inferred
that the man must have been the appellant. But that is the
very question that the Court has to decide. The only fact
that this witness can be said to prove is that be saw a man
that night wearing a false beard and mask who looked like
the appellant.
Then we come to the recoveries. The false beard and mask
were found buried in the grounds of Dewayat’s house and the
appellant is said to have recovered them in the presence of
panchas. But those discoveries are inadmissible in evidence
because the police already knew where they were hidden.
Their information was not derived from the appellant but
from Dewayat (one of the other suspects). The way the
police came to find this out was this. Dewayat says that
the appellant confessed the murder to him and told him that
he had gone there wearing a false beard and a mask and that
he had buried these articles
1295
under the Shami tree in the grounds of Dewayat’s bada.
Dewayat says-
“Next the police called me to go to Kalawad. At that time
Raja had been arrested………… I was interrogated. I
spoke about the beard at that time. Then the police came to
my field with Raja”.
If Meraman (P. W. 11), read with the Confused statement of
Kana (P.W. 4), is to be believed, Dewayat was also under
arrest either at the time or on the day before. As the Sub-
Inspector was not examined, we are unable to clear this up
and so are bound to give weight to the criticism of the
Sessions Judge where he says-
“However, Dewayat confesses that his statement was not
recorded on the 19th of May 1952 but was recorded on 20-5-
1952 only after he was questioned by the police”.
In our opinion, not only is this evidence about recovery
not admissible but the danger that Samant (P.W. 16) mistook
Dewayat, who was also under strong suspicion, or someone
else who looked like the appellant, for the appellant, has
not been excluded.
Lastly, there is the recovery of the axe. But this was
not hidden. It was kept behind an earthen jar in the
appellant’s house just as an axe might be normally kept in
any average household. The only point of suspicion is that
the axe had stains of human blood on it. But the difficulty
we are faced with there is that the extent of the stains and
their position is not disclosed. We have had occasion to
comment before on the very slovenly and ineffective way in
which some Chemical Analysers do their duty. This is
another case in which what might otherwise have been a
valuable piece of evidence has to be disregarded. The axe
was not recovered till the 21st and was standing where it
could have been handled by other members of the household.
In any case, villagers frequently have slight cuts or
scratches or a prick from a thorn on their persons and a few
drops of blood could easily be transferred to an article
like an axe without anybody noticing or knowing. The
important thing in a case like this, where everything
1296
is now seen to hang on this one fact, would be the extent of
the blood and its position. The postmortem reveals that the
injuries were incised and that the bleeding was profuse. If
therefore there was blood all along the cutting edge and
around it, that would have been a strong circumstance; but
if there was only a small smear of blood, say, on the back
of the axe and none on or near the edge, then that would
have been a circumstance for complete exoneration. When
everything hangs on this one point, we cannot assume without
proof that stains which might be compatible with either
guilt or innocence must have been of what we might term the
guilty kind.
On a careful examination of the evidence in this case, we
are not satisfied that the circumstances disclose “strong
and compelling reasons” to set aside the acquittal.
The appeal is allowed. The conviction and sentence are set
aside and the appellant is acquitted.
VENKATARAMA AYYAR J.-I regret I am unable to agree with the
judgment just delivered.
The appellant belonged to the village of Katkora, and
developed intimacy with an unmarried woman called Sunder in
the neighboring village of Shiva. Subsequently, Sunder was
married to one Jetha of Kalawad, a village about 3 miles
distant from Shiva. It had been arranged to take Sunder to
her husband’s house on the 19th May 1952, and for that
purpose, Sida, the father of Jetha, had come to Shiva on the
18th. The case of the prosecution was that the appellant
was determined to prevent Sunder from joining her husband,
and with that object he went to Kalawad on the night of the
18th, and killed Jetha with his axe, when be was asleep.
The murder came to light next morning, and the matter was
reported to the police. The appellant was arrested on 20-5-
1952. On his information the police recovered from his
house at Katkora an axe, and the panchnama discloses that it
then bad stains of blood which was subsequently found by the
Chemical Analyst to be human. The appellant next showed to
the police
1297
a false beard, which was buried under a tree in the village
of Shiva. It is alleged that this was worn by the appellant
at the time of the murder.
On 21-5-1952 the police sent the appellant to the First-
Class Magistrate (P. W. 21), with a letter stating that he
wanted to make a confession. The Magistrate, however,
decided to give him time “to cool down”, and put him in
judicial lock-up. He then went on duty to another place,
and on his return, recorded the confession of the appellant,
which is as follows:
“ I, having gone to his Wadi, have killed him. I have
killed him with axe. I have killed him for the sake of
Sunderbai. Sunderbai is the wife of Jetha. I had illicit
connection with her. I have murdered Jetha Sida with the
idea of marrying Sunderbai. I gave him an axe-blow on the
neck. At that time I had put on a tunic and a pair of
trousers. I bad a turban on my head. I had worn artificial
beard. After the murder, the artificial beard buried in the
field of Dewanand Mope. I took the axe to my house”.
The appellant retracted this confession before the
Committing Magistrate, as made under police beatings and
threats. He was then sent up to the Sessions Court, Halar,
to take his trial, which took place with the aid of four
assessors.
There was no direct evidence that the appellant had
committed the murder. The circumstantial evidence on which
the prosecution sought to establish his guilt consisted of a
confession made by him to the Magistrate, the recovery of
the axe and the false beard, and the existence of strong
motive. There was, besides, a considerable body of evidence
that on the 18th May the appellant was haunting the village
of Shiva where Sunder was residing, with an axe in his hand
and threats in his tongue. The assessors were unanimously
of the opinion that the appellant was guilty, but the
Sessions Judge disagreed with them, and held that the
confession was neither true nor voluntary, and that though
there were strong grounds for suspecting him, the evidence
was not sufficient to convict him, and so acquitted him.
There was an appeal against this judgment by the
1298
State to the High Court of Saurashtra. The learned Judges,
differing from the Sessions Judge, held that the confession
was true and voluntary, that there was ample corroboration
thereof in the evidence, and that even apart from it, the
other facts proved by ‘the prosecution were sufficient to
establish the guilt of the appellant. They accordingly set
aside the order of acquittal passed by the Sessions Judge,
convicted the appellant under section 302 and sentenced him
to transportation for life. It is against this judgment
that the present appeal by special leave has been brought.
The question is whether having regard to the principles on
which this Court exercises its jurisdiction under article
136, there are grounds for interference in this appeal.
Those principles are well-settled and may briefly be
recapitulated. Prior to the abolition of the jurisdiction
of the Privy Council, the law of this country did not in
general provide for appeals against judgments of the High
Courts in criminal matters. Indeed, the policy of the
legislature as expressed in sections 404 and 430 of the Code
of Criminal Procedure and departing in this respect from
that adopted in the Civil Procedure Code, has been that
decisions of courts passed in criminal appeals should be
final and subject to specified exceptions, not open to a
further appeal on facts. So far as judgments of the High
Courts are concerned, the limitation on further appeal
imposed by the Indian statutes could not affect the
jurisdiction of the Privy Council to entertain appeals
against them in the exercise of the prerogative of the
Crown. That was a power which the Privy Council possessed
in respect of orders passed by the courts all over the
Dominions, and the limits within which the Judicial
Committee exercised that power were thus stated by Lord
Watson in In re Abraham Mallory Dillett(1):
“The rule has been repeatedly laid down, and has been
invariably followed, that Her Majesty will not review or
interfere with the course of criminal proceedings, unless it
is shown that, by a disregard of
(1) [1887] 12 A.G. 459, 467.
1299
the forms of legal process, or by some violation of the
principles of natural justice, or otherwise,substantial and
grave injustice has been done”.
These principles were followed in quite a number of appeals
against judgments of Indian courts in criminal matters. In
Dal Singh v. King-Emperor(1), the Privy Council, stating the
practice of the Judicial Committee in dealing with an appeal
in a criminal case., observed:
“The general principle is established that the Sovereign
in Council does not act, in the exercise of the prerogative
right to review the course of justice in criminal cases, in
the free fashion of a fully constituted Court of criminal
appeal. The exercise of the prerogative takes place only
where it is shown that injustice of a serious and
substantial character has occurred. A mere mistake on the
part of the Court below., as for example, in the admission
of improper evidence, will not suffice if it has not led to
injustice of a grave character. Nor do the Judicial
Committee advise interference merely because they themselves
would have taken a different view of evidence admitted.
Such questions are, as a general rule, treated as being for
the final decision of the Courts below”. In Taba Singh v.
Emperor(2) , Lord Buckmaster observed that the
responsibility for the administration of criminal justice
rested with the courts in India, and that the Board would
not interfere “unless there has been some violation of the
principles of justice or some disregard of legal
principles”. In George Gfeller v. The King(3), which was an
appeal from the Supreme Court of Nigeria, Sir George Rankin
observed:
“Their Lordships have repeated ad nauseam the statement
that they do not sit as a Court of Criminal Appeal. For
them to interfere with a criminal sentence there must be
something so irregular or so outrageous as to shock the very
basis of justice: per Lord Dunedin in Mohindar Singh v.
Emperor(4). Cf. Muhammad Nawaz v. Emperor(5)
(1) [1917] L.R. 44 I.A. 187, 140. (2) [1924] I.L.R.
48 Bom. 515.
(3) A.I.R. 1943 P.C. 211. (4) [1932] L.R. 59 I.A. 233,
235.
(5) [1941] L.R. 68 I.A. 126, 129.
164
1300
On these principles, the Privy council refused in Macrea, Ex
parts(1) leave to appeal on the ground of misdirection to
the jury and in Mohindar Singh v. Emperor’(2)on the ground
that a wrong view had been taken of the law.
Thus, the law was well-settled that the Privy Council
would not entertain appeals against judgments in criminal
cases, unless there was an error of . procedure or disregard
of legal principles amounting to a denial of fair trial and
resulting in grave injustice. Under the Constitution, the
position of the Supreme Court which has taken t he place of
the Privy Council is this. Its jurisdiction as that of the
Privy Council in respect of criminal appeals may be classed
under two categories, cases where a right of appeal is
expressly granted by the Constitution or by the statutes, as
for example, articles 132(1) and 134 (1) of the Constitution
or section 411-A(4) of the Code of Criminal Procedure, in
which the scope of the appeal would depend upon the terms of
the enactments which confer the right; and cases’ where it
is called upon to exercise its powers under article 136,
which corresponds substantially to the prerogative
jurisdiction exercised by the Privy Council with reference
to which the practice of the Judicial Committee might
usefully be referred to for indicating the area of
interference.
The question was considered by this Court in Pritam Singh
v. The State(3), where the law was thus laid down:
“On a careful examination of article 136 along with the
preceding article, it seems clear that the wide
discretionary power with which this Court is invested under
it is to be exercised sparingly and in exceptional cases
only …. The Privy Council have tried to lay down from time
to time certain principles for granting special leave in
criminal cases, which were reviewed by the Federal Court in
Kapildeo v. The King(4). It is sufficient for our purpose
to say that though we are not bound to follow them too
(1) [1893] L.R. 20 I.A. 90. (2) [1932] L.R. 59 I.A. 233,
235.
(3) [1950] S.C.R. 458, 458. (4) A.I R. 1950 F.C. 80.
1301
rigidly since the reasons constitutional and administrative,
which sometimes weighed with the Privy Council, need not
Weigh with us, yet some of those -principles are useful as
furnishing in many cases a sound basis for invoking the
discretion of this Court in granting special leave.
Generally speaking, this Court will not grant special leave,
unless it is shown that exceptional and special
circumstances exist, that substantial and grave injustice
has been done and that the case in question presents
features of sufficient gravity to warrant a review of the
decision appealed against”.
The preceding article referred to in the opening passage
is clearly article 134. Article 134(1) confers a right of
appeal to this Court in certain cases, in terms unqualified,
on questions both of fact and of law, and if the scope of an
appeal under article 136 is to be extended likewise to
questions of fact, then article 134(1) would become
superfluous. It is obvious, that the intention of the
Constitution in providing for an appeal on facts under
articles 134(1) (a) and (b) was to exclude it under article
136, and it strongly supports the conclusion reached in
Pritam Singh v. The State(1) that like the Privy Council
this, Court would not function as a further court of appeal
on facts in criminal cases.
Having regard to the principles enunciated in this
decision., the question is whether there are sufficient
grounds for interfering with the judgment of the High Court
in the present appeal. The point which the learned Judges
had to decide in the appeal was whether it was the appellant
who had murdered Jetha. That is a pure question of fact
turning on appreciation of evidence. -The High Court has
gone into the matter fully, examined the entire evidence ex-
haustively, and in a judgment which is as closely reasoned
as it is elaborate, has come to the conclusion that the
guilt of the appellant has been established beyond all
reasonable doubt. Does that decision call for our
interference in special appeal?.No, unless this Court is to
‘function as a court of appeal on facts.
(1) [1950] S.C.R. 453, 458.
1302
But then, it is argued that the appeal before the High Court
was one against acquittal, that such an appeal was subject
to the limitation that there should be compelling reasons
for reversing an order of acquittal, and that it would be
open to this Court in special appeal to consider whether
that limitation bad been duly observed. On this contention,
two questions arise for determination: (1) what are the
powers of a court which hears an appeal against an order of
acquittal? And (2) what are the grounds on which the
decision of that court ban be reviewed by this Court under
article 136?
The right to appeal against an order of acquittal is
conferred on the State by section 417 of the Code of
Criminal Procedure, and is in terms unqualified.
Nevertheless, the view was taken at one time in some of the
decisions that appeals against acquittals were in a less
favoured position than appeals against convictions, and that
an order of acquittal should not be interfered with in
appeal except “where through the incompetence, stupidity or
perversity of certain tribunal such unreasonable or
distorted conclusions have been drawn from the evidence so
as to produce a positive miscarriage of justice”, or were
“the lower court has so obstinately blundered or gone wrong
as to produce a result mischievous at once to the admi-
nistration of justice and the interests of the public”.
Vide Empress v. Gayadin(1), Queen-Empress v. Robinson(2),
Deputy Legal Remembrancer v. Amulya Dwan(3) and King-Emperor
v. U San Win(4). In Sheo Swarup v.-King-Emperor(5), the
question was raised for determination by the Privy Council
whether there was any legal basis for the limitation which
the above decisions had placed on the right of the State to
appeal under section 417. Answering it in t e negative,
Lord Russell observed that there was “no indication in the
Code of any limitation or restriction on the High Court in
the exercise of its powers as an appellate tribunal”, that
no distinction was drawn
(1) [1881] I.L.R. 4 All. 148. (2) [1894] I.L.R. 16 All.
212.
(3) [1914] 18 C.W.N. 666. (4) [1982] I.L.R. 10 Rang. 312,
(5)[1934] L.R. 61 I.A. 398, 403, 404.
1303
“between an appeal from an order of ’acquittal and an-
appeal from a conviction”, and that “no limitation should be
placed upon that power unless it be found expressly stated
in the Code”.. He went on to remark at page 404 that,
“the High Court should and will always give proper weight
and consideration to such matters as (1) the views of
the trial Judge as to the credibility of the witness, (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
appellate Court in disturbing a finding of fact arrived at
by a Judge who bad the advantage of seeing the witnesses”.
These observations, however, do not mean that the scope
of appeals against acquittals is different from that of
other appeals. They merely embody the principles applicable
to all appeals, civil and criminal, to appeals alike against
conviction and acquittal. Thus, if A files a suit on a
promissory note against B and the latter denies execution,
the burden is on the plaintiff to establish its genuineness.
If the trial Judge does not accept the evidence adduced by
him and dismisses his suit and he appeals, he has the burden
still on him to prove on the evidence adduced that the
-promissory note is genuine, and in discharging that burden
he has to show that the judgment appealed against is clearly
wrong. In Naba Kishore Mandal v. Upendra Kishore Mandal(1),
Lord Buckmaster stated:
“The only further observation that their Lordships desire
to make is to call attention once more to the fact that in
appeals the burden of showing that the judgment appealed
from is wrong lies upon the appellant. If all he can show
is nicely balanced calculations which lead to the equal
possibility of the judgment on either the one side or the
other being right, he has not succeeded”.
Adapting these observations to criminal trial, when the
State appeals against an order of acquittal, it
(1) [1921] 42 M.L.J. 253, 257 (P.C.).
1304
has to establish on the evidence that the accused is guilty,
and to establish it, it has to satisfy the court that the
judgment of the trial court is erroneous. The oft-repeated
observation that on acquittal the presumption of innocence
becomes reinforced is merely this principle stated in terms
of criminal law. Likewise, the weight to be attached by an
appellate court to a finding of the trial court based upon
appreciation of oral evidence is the same whether it is
given in a civil litigation or a criminal trial. Dealing
with the position of an appellate court hearing a civil
appeal, the Privy Council observed in Bombay Cotton
Manufacturing Co. v. Motilal Shivlal(1):
“It is doubtless true that on appeal the whole case,
including the facts, is within the jurisdiction of the
Appeal Court. But generally speaking, it is undesirable to
interfere with the findings of fact of the Trial Judge who
sees and hears the witnesses and has an opportunity of
noting their demeanour, especially in cases where the issue
is simple and depends on the credit which attached to one or
other of conflicting witnesses…….. In making these
observations their Lordships have no desire to restrict the
discretion of the Appellate Courts in India in the
consideration of evidence”.
It is clearly these principles that Lord Russell had in
mind when he made the observations at page 404 in Sheo
Swarup v. King-Emperor2′) quoted above, and that will be
clear from the observation next following:
“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
recognized in the administration of justice”.
The scope of the decision in Sheo Swarup v. King
Emperor(2) with special reference to the observations
discussed above was thus explained by the Privy .Council in
Nur Mohammad v. Emperor(3):
“Their Lordships were referred, rightly enough to the
decision of this Board in the case in Sheo
(1) [1915] L.R. 42 I.A. 110; 118. (2) [1934] L.R. 61 I.A.
398.
(3) A.I.R.1945 P.C. 151.
1305
Swarup v. King-Emperor(1), and in particular to the passage
at p. 404 in the judgment delivered by Lord Russell. Their
Lordships do not think it necessary to read it all again,
but would like to observe that there really is only one
principle, in the strict use of the word, laid down there;
that is that the High Court has full power to review at
large all 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”.
These authorities establish beyond all controversy that an
appeal against acquittal under section 417 stands, as
regards the powers of an appellate court, on the same
footing as appeals against conviction.
If that is the true scope of an appeal under section 417,
where then does the doctrine of “compelling reasons” come
in? And how do we fit it among the powers of a court under
that section? The words compelling reasons” are not a
legislative expression. They are not found in section 417.
As far as I have been able to discover, it was first used in
Surajpal Singh and others v. The State(2), wherein it was
observed:
“It is well established that in an appeal under section
417 of the Criminal Procedure Code, the High Court has full
power to review the evidence upon which the order of
acquittal was founded, but it is equally well-settled that
the presumption of innocence of the accused. is further
reinforced by his acquittal by the trial court, and the
findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence can be
reversed only for very substantial and compelling reasons”.
Do the words “compelling reasons” in the above passage
import a limitation on the powers of a court hearing an
appeal under section 417 not applicable to a court hearing
appeals against conviction? If they do, then it is merely
the old doctrine that appeals against acquittal are in a
less favoured position, dressed in a new garb, and the
reasons for rejecting it as unsound are as powerful as those
which found favour with the Privy Council in Sheo Swarup v.
King-Em-
(1) [1934] L.R. 61 I.A. 398. (2) [1952] S.C.R. 193, 201.
1306
peror(1) and Nur Mohammad v. Emperor(2). But it is probable
that these words were intended to express, as were the
similar words of Lord Russell in Sheo Swarup v. King-
Emperor(1), that the court hearing an appeal under section
417 should observe the rules which all appellate courts
should, before coming to a conclusion different from that of
the trial court. If so understood, the expression
“compelling reason s” would be open to no comment. Neither
would it be of any special significance in its application
to appeals against acquittals any more than appeals against
conviction. But the expression has been quoted in later
judgments, especially of the courts below, as if it laid
down that in appeals against acquittal, the standard of
proof required of the appellant was far higher than what the
law casts on appellants in other appeals, and as the words
“compelling reasons” are vague and indefinite to a degree,
the result has not seldom been that even when Judges hearing
appeals under section 417 were convinced of the guilt of the
accused, they refrained from setting aside the order of
acquittal owing to the dark and unknown prohibition
contained in the expression. That is the impression which I
have formed in the appeals which have come before me. in
this Court. There is always a danger in taking a phrase,
attractive and telling-in its context, out of it, and
erecting it into a judicial formula as if it laid down a
principle universal in its application. And this danger is
all the greater when the phrase is of undefined import, and
relates to appreciation of evidence. It is in the interests
of the public that crimes should be punished, and it is with
this object that section 417 confers on the State a right to
appeal against acquittal. To fetter this right through such
expressions as “compelling reasons” would not merely be to
legislate but to defeat the plain intention of the
legislature that an accused in an appeal against acquittal
should. have only those rights which the State in an appeal
against conviction or a respondent in a civil appeal has,
and that he is to enjoy no special protection.
(1) [1934] L.R. 61 I.A. 398. (2) A.I.R. 1945 P.C. 151.
1307
The fundamental objection to regarding the expression
“compelling reasons” as a rigid formula governing the
decision of an appeal under section 417 is that it puts a
judgment of acquittal, however rendered, in a position of
vantage which the law did not accord to it, and throws
around the accused who gets an order of acquittal in the
trial court a protection which the law did not intend to
give him. In my judgment, this is a situation in which
great mischief must result, and the interests of the public
must suffer’
If the expression “compelling reasons” does not impose a
restriction on the powers of a court hearing an appeal under
section 417, and if its true scope is to guide it in
arriving at a decision, the question whether this Court can
interfere with that decision on the ground that it is
erroneous presents no difficulty. The decision would then
be one on a question of fact depending upon the appreciation
of evidence, and this court cannot, on the principles
enunciated in Pritam Singh v. The State(1) interfere with
it. This position is, in fact, concluded by the decisions
in Sheo Swarup v. King-Emperor(2) and Nur Mohammad v.
Emperor(3). In Sheo Swarup v. King-Emperor(2), the Sessions
Judge bad characterised the prosecution witnesses as liars,
and disbelieving their evidence had acquitted the accused.
On appeal, the High Court reviewed the evidence, and
differing from the trial court as to the weight to be
attached to it, convicted the accused. Declining to
interfere with this judgment, the Privy Council observed
that even though there was no express mention in the
judgment of the High Court that it had considered all the
particulars which an appellate court should consider in
deciding an appeal, there was “no reason to think that the
High Court had failed to take all proper matters into
consideration in arriving at their conclusions of fact”. In
Nur Mohammad v. Emperor(3), the judgment of the High Court
did not disclose that it had considered the matters
mentioned by Lord Russell at page 404
(1) [1950] S.C.R. 453. (2) [1934] L R. 61 I.A. 398,
(3) A.I.R 1945 P.C. 151.
165
1308
in Sheo Swarup v. King-Emperor(1). Nevertheless, the Privy
Council dismissed the appeal observing:
“In the present case the High Court judgment shows that
they have been at pains to deal in detail with the reasons
given by the Sessions Judge for disbelieving the group of
witnesses, the Patwari and the other three alleged eye-
witnesses. They have dealt in detail with them, showing on
the face of their judgment that there is no necessity to
presume in this case that they have not done their duty….”
These decisions are authorities for the position that when
in an appeal under section 417 the court considers the
evidence and comes to its own conclusion the findings
recorded by it are not, even when they result in a reversal
of the order of acquittal, open to interference in special
appeal. Different considerations would have arisen if the
law bad provided a further appeal on facts against those
orders of reversal, in which case the appreciation of the
evidence by the appellate court would be a matter open to
review in the superior court. That, as already stated,
would be the position in an appeal under articles 132 (1)
and 134(1) (a) and (b), but where, as in the present, no
appeal on facts is provided, the decision of the High Court
is not open to review by this Court under article 136 on the
ground that there were no compelling reasons for the learned
Judges to reverse an order of acquittal.
This is sufficient to entail the dismissal of this appeal.
But, having gone through the evidence, I am of opinion that
even on the merits the decision of the High Court is
correct. The evidence against the appellant is wholly
circumstantial, and consists mainly of (1) the existence of
a strong motive, (2) the conduct of the appellant on the day
when the murder was committed, (3) the recovery of a blood-
stained axe and a false beard at the instance of the
appellant, and (4) a confession made by him ’before the
Magistrate, P.W. 21, on 3-6-1952. Taking the above items-
seriatim, it is the case of the prosecution that the
appellant was living on terms of inti-
(1) [1934] L.R. 61 I.A. 398.
1309
macy with Sunder, and as she was to be taken on the 19th May
1952 to Kalawad to join her husband, he wanted to do away
with him. The appellant admitted that he had illicit
connection with Sunder for some years, and the Sessions
Judge also found, basing himself on the prosecution
evidence, that the appellant was very much agitated on the
night of the 18th. A number of witnesses deposed that
they saw him on 18-5-1952 at Shiva sharpening his axe, and
that when questioned, he stated that be was going to offer a
green coconut to Mahadevji, “can expression “ say the
learned Judges “which in common parlance means sacrifice of
a head”. The appellant denied that he went to Shiva on the
18th, but his statement was, disbelieved by the Sessions
Judge who was impressed by the quality and number of the
prosecution witnesses, and both the courts have concurred in
accepting their evidence on this point.
As for the recovery of the axe, the appellant admitted
it, but he stated in his examination under section 342 that
there was no blood on it when he showed it to the police.
The Sessions Judge, was not prepared to accept this
statement and observed:
“Accused admits that this is his axe. In light of
chemical analysis, there is no doubt that there were stains
of human blood on the axe. It is also mentioned in the
Pancbnama, Ex. 21 itself that the Panch had suspected that
there were marks of human blood on this axe”.
But all the same, he discounted the value of this evi-
dence, because according to him, in view of certain
circumstances “the presence of human blood on the axe is by
no means conclusive”, and that “at best it raises a
suspicion against the accused”. Those circumstances are
three: Firstly, the panch who witnessed the recovery at
Katkora belonged to Kalawad, and the criticism is that a
local panch ought to have been got to witness the same. The
learned Judges of the High Court did not think much of this
criticism, as the recovery at Katkora had to be made in
pursuance of the statement given by the appellant at
Kalawad,
1310
and the police might have reasonably thought that the same
panch should be present at both the places. As the Sessions
Judge has accepted the evidence of the panch that there were
blood stains at the time of the recovery of the axe, his
criticism on this point lacks substance. Secondly, though
the recovery was made on 21-5-1952, it was sent to the
medical officer for report only on 27-5-1952, and the delay
is suspicious. It is difficult to follow this criticism.
When once the conclusion is reached that there was blood on
the axe when it was recovered, this criticism has no meaning
unless it is intended to suggest that the police required
some time to wash the blood which was on the axe at the,
time of its recovery and to substitute human blood
therefore. There is nothing in the evidence to support a
suggestion so grotesque, and as observed by the learned
Judges, if the police wanted to substitute blood, they would
not have taken so much time over it.
Thirdly, in despatching the blood to the Chemical Analyst,
the medical officer sent the parcel containing the blood
scrapings to the railway station, not through his own peon
or the compounder in the hospital but through the local
police, and that, according to the Sessions Judge, is a
suspicious circumstance. As the parcel was received intact
by the Chemical Analyst at Bombay, it is difficult to see
what the point of the criticism is. The Sessions Judge
himself observes:
“I do not believe that the police have intercepted this
parcel and they deliberately sent an axe with human blood.
However, there is no doubt that the procedure adopted by the
doctor is wrong, and is capable of mischief”.
It has not been explained and it is not possible to divine
what that mischief could have been in this case. And who
could have been the mischief-maker unless it be the police?
The Sessions Judge stated that be did not believe the
suggestion made against the police, but that nevertheless is
the assumption underlying his comment. “Anxious to wound,
afraid to strike” would appropriately describe the
situation. The learned Judges disagreed with the reasoning
of
1311
the Sessions Judge, and held that as the appellant had
admitted the recovery of the axe and as there was human
blood on it at that time, it was clear and cogent evidence
pointing to his guilt. I am unable to find any answer to
this reasoning.
Pausing here, it will be seen that in discussing the
question of the recovery of the blood-stained axe, as indeed
throughout the judgment, the learned Sessions Judge has
taken up an, attitude of distrust towards the police for
which it is difficult to find any justification in the
evidence-an attitude which, I regret to say, is becoming a
growing feature of judgments of subordinate Magistrates.
When at the trial, it appears to the court that a police
officer has, in the discharge of his duty, abused his
position and acted oppressively, it is no doubt its clear
duty to express its stern disapproval of his conduct. But
it is equally its duty not to assume such conduct on the
part of the officer gratuitously and as a matter of course,
when there is, as in this case, no reasonable basis for it
in the evidence or in the circumstances. The presumption
that a person acts honestly applies as much in favour of a
police officer as of other persons, and it is not a judicial
approach to distrust and suspect him without good grounds
therefore. Such an attitude could do neither credit to the
magistracy nor good to the public. It can only run down the
prestige of the police administration.
It is the case of the prosecution that the appellant
unearthed a false beard, which he had buried underneath a
shami tree in Shiva, and that he had worn it at the time of
the murder. The appellant did not deny the recovery, but
stated that it was not he that had uncovered it but the
jamadar. Both the courts below have accepted the version of
the prosecution as true, but while the Sessions Judge held
that it was not sufficient to implicate the appellant, the
learned Judges held otherwise. P.W. 16 deposed that he saw
the appellant at midnight on the 18th May on the outskirts
of Kalawad wearing a false beard, and the comment of the
Sessions Judge on this evidence is:
” I do not see bow this evidence will prove the
1312
prosecution case beyond reasonable doubt. At best, it will
suffice to raise suspicion against the accused”. But if the
beard was discovered by the appellant, then surely it is a
valuable link in the chain of
evidence against him.
Then we come to the confession made by the appellant to P.W.
21. The Magistrate has deposed that he had satisfied
himself that it was voluntary, before he recorded it. The
Sessions Judge did not discredit his testimony, but was of
opinion that in view of certain circumstances the confession
was not voluntary. Now, the facts relating to this matter
are these, The appellant was, as already stated, arrested on
the 20th May and discoveries of the axe and the false beard
were made through him, and on the 21st he was sent to the
Magistrate with a letter that he desired to make a
confession. The Magistrate has given evidence that he did
not record the confession at once, as he wanted the
appellant “to cool down”, and accordingly gave him ten days
to reflect, and committed him to judicial lock-up. There is
nothing improper in this, and indeed ‘ it is a commendable
precaution for ensuring that the confession was made
voluntary. From 21-5-1952 to 3-6-1952 the appellant
continued in judicial lock-up, and this is a circumstance
which normally should negative the possibility of there
having been a threat or inducement. But the Sessions Judge
declined to attach any weight to it, because both the police
lock-up and the judicial lock-up were situated in the same
compound, separated by a distance of 20 feet, and were
guarded by the same police officers, and though the judicial
lockup had its own warder and clerk jailor, they kept watch
only during daytime, and therefore even though the police
could have had no access inside the lock-up, they had “every
opportunity to threaten and bully the accused”. The
Sessions Judge accordingly held that the confession was not
voluntary. On appeal, the learned Judges came to a
different conclusion. They considered that the possibility
of threats having been uttered through the bars was too
remote and unsubstantial to form the ‘basis for any
1313
conclusion, and that all the circumstances indicated that
the confession was voluntary. These are the salient points
that emerge out of the evidence.
The position may be thus summed up:
(1) No special weight attaches to the findings of the
Sessions Judge on the -around that they are based on the
evidence of witnesses whom he had the advantage of seeing in
the box, and believed. The oral evidence was all on the
side of the prosecution, and that was substantially accepted
by the Sessions Judge. His judgment is based on the
probabilities of the case, and of them, the learned Judges
were at least as competent to judge, as he.
(2) The finding of the Sessions Judge in so far as it
related to the recovery of bloodstained axe was clearly
erroneous, as it did not follow on his reasoning.
(3) As regards the confession, the conclusion of the
Sessions Judge rests on nothing tangible, and is largely
coloured by a general distrust of the police, not based on
evidence or justified by the circumstances.
(4) The learned Judges were of the opinion that even
excluding the confession, the other evidence in the case was
sufficient to establish the guilt of the appellant.
(5) All the four assessors were of the opinion that the
appellant was guilty.
Now, returning to the two questions which have formed the
basis of the preceding discussion, (1) what is it that the
High Court has to do in exercise of its powers under section
417, having regard to the findings reached by it and set out
above, and how does the doctrine of “compelling reasons”
bear upon it? (2) What are the grounds on which we can
interfere with its decision? A court hearing an appeal
under section 417 might be confronted with three
possibilities: (i) It might come to the same conclusion as
the trial court on the questions in issue, in which case, of
course, it should dismiss the appeal; (ii) It might consider
that the evidence was not clear and conclusive one way or
the other, in which case its duty
1314
as an appellate court would be not to interfere with the
judgment appealed against; and (iii) it might come to a
conclusion on an appreciation of the evidence opposite to
that reached by the court of first instance, in which case
it would clearly be its duty in exercise of its powers under
section 417 to set aside the order of acquittal. Wherein
does the theory of “compelling reasons” come in the scheme?
There is no need for it in the second category, because even
apart from it, the same result must, as already stated,
follow on the principles applicable to all courts of appeal.
Then, there remains the third category of cases. If the
High Court comes to the conclusion on an appreciation of the
evidence that the appellant is guilty, has it, nevertheless,
to confirm the order of acquittal on the basis of this
theory? Surely not, as that would render the right
conferred by section 417 illusory. Thus, the doctrine of
“compelling reasons” would appear to have use only as a
guide to the appellate court in determining questions of
fact. It has no independent value as bearing on its powers
under section 417. If that is the true position, it follows
on the principles laid down in Sheo Swarup v. King-
Emperor(1) and Nur Mohammad v. Emperor(2) and in Pritam
Singh v. The State(3) that this Court cannot interfere with
the orders passed under section 417 merely on the ground
that the findings of fact were not justified, having regard
to the doctrine of “compelling reasons”.
In my opinion, this appeal ought to be dismissed.
ORDER.
BY THE COURT.-In accordance with the Judgment of the
majority this Appeal is allowed. The conviction and
sentence are set aside and the Appellant is acquitted.
(1) [1934] L.R. 61 I.A.398. (2) A.I.R. 1945 P.C. 151.
(3) [1950] S.C.R. 453.
1315