MANU/SC/0040/1955

Equivalent/Neutral Citation: AIR1956SC 217, 1957()ALT92(SC ), 1956C riLJ426, 1955/INSC /81, (1956)1MLJ135, [1955]2SC R1285

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 64 of 1955
Decided On: 22.12.1955
Aher Raja Khima Vs. The State of Saurashtra
Hon'ble Judges/Coram:
N. Chandrasekhara Aiyar, Vivian Bose and T.L. Venkatarama Aiyyar, JJ.
Case Note:
The case debated on the powers of the High Court in considering an appeal
made against the order of acquittal under Section 417 of the Code Criminal
Procedure (5 of 1898) - It was held that the High Court could not set aside
the acquittal orders merely on the basis that it was differing from the Trial
Court on the appreciation of evidence - Thus the High Court should have
substantial and compelling reasons for ordering acquittal of the accused
JUDGMENT
Vivian Bose, J.
1. The only question in this appeal is whether the High Court in mind the principles 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 MANU/SC/0042/1952 :
1953CriL J521 ; 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. MANU/SC/0033/1951 : 1952CriLJ331 .
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.
3 . 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 when he says that he is not satisfied that it was made voluntarily we find it
impossible to hold that that is a view which a judicial mind acting fairly could not
reasonably reach.
4. 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

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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 about
this and elicited contradictory relies. 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".
5. 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 Sub-Inspector 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. 11, 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 Sub-
Inspector was not there to clear up the matter it is only fair to accept what the appellant
says.
6. 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 he 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 had 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 Sub-
Inspector 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 one that cannot be overlooked.
7 . But apart from that. This is the description of the judicial lock-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 jail
itself. Inside the jail gate is the police lock-up. The police can go into the police
lock-up when they choose".
8. 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

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 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".
9. 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".
10. 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".
11. Now it may be possible to take views of this statement but there are two important
factors in every criminal trial that weigh heavily in favour of an accused person : one is
that the accused is entitled 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 he 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 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 bearing 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.
1 2 . 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".
13. But what the learned Judges overlooks 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 cross-examine him about this, that might 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

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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 compelling reasons for holding that he was wrong; on the contrary, the
learned Sessions Judge's hesitation is grounded on well established judicial principles.
14. 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 not at 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 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 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 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.
15. If the confession is excluded, then there is not, in our opinion, sufficient evidence
against the appellant on which a conviction can be based.
16. It will now be necessary to set out the facts.
17. 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 husbands village Kalawad on the night of the 18th/19th and murdered him with an
axe which the prosecution say belongs to him and which they say he later produced.

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18. Both Courts hold that the motive is proved; and that can be accepted.
19. 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.
20. 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.
21. 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 coconut had reference to this and was
later thought to have reference to a vow : the sort of mistake that the 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 hand, it is wholly consistent with innocence. A
reasonable doubt arises and the appellant is entitled to its benefit.
22. Next comes the evidence of Samant, P.W. 16, who says that he 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 the saw a man that night wearing a false beard and mask
who looked like the appellant.
23. Then we come to the recoveries. The false beard and mask were found buried in the
grounds of Dewayat's house and the appellate 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

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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 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".
24. 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".
25. 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.
26. 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 is now
seen to hang on this one fact, would be the extent of the blood and its position. The
post-mortem 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.
27. 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.
28. The appeal is allowed. The conviction and sentence are set aside and the appellant
is acquitted.
T.L. Venkatarama Aiyyar, J.
29. I regret I am unable to agree with the judgment just delivered.

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30. The appellant belonged to the village of Katkora, and developed intimacy with an
unmarried woman called Sunder in the neighbouring 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 he 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 had stains of blood which was subsequently found by
the Chemical Analyst to be human. The appellant next showed to the police 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.
31. 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 had 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".
32. 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.
33. 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.
3 4 . There was an appeal against this judgment by the 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.

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3 5 . 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 respects 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 [1887] 12 A.C. 459 :
"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 the forms of legal process, or by some
violation of the principles of natural justice, or otherwise, substantial and grave
injustice has been done".
36. These principles were followed in quite a number of appeals against judgments of
Indian courts in criminal matters. In Dal Singh v. King-Emperor [1917] L.R. 44 IndAp
137, 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".
37. In Taba Singh v. Emperor I.L.R. [1924] 48 Bom. 515, 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 MANU/PR/0073/1943 : A.I.R. 1943 P.C. 211, 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 [1932] L.R.
59 IndAp 233. Cf. Muhammad Nawaz v. Emperor [1941] L.R. 68 IndAp 126".
3 8 . On these principles, the Privy Council refused in Macrea, Ex parte
MANU/PR/0033/1893 leave to appeal on the ground of misdirection to the jury and in

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Mohindar Singh v. Emperor [1932] L.R. 59 IndAp 233 on the ground that a wrong view
had been taken of the law.
39. 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 the
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.
4 0 . The question was considered by this Court in Pritam Singh v. The State
MANU/SC/0015/1950 : 1950CriLJ1270 , 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 A.I.R. 1950 F.C. 80. It is sufficient for our purpose to say
that tough we are not bound to follow them too 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".
4 1 . 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
MANU/SC/0015/1950 : 1950CriL J1270 that like the Privy Council this Court would not
function as a further court of appeal on facts in criminal cases.
42. 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 exhaustively, and in a judgment which is as closely
reasoned as it is elaborate, has come to the conclusion that the guilt of the appellant

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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.
4 3 . 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 had 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 can be reviewed by this Court under article
136 ?
44. 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 a
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 where "the lower court has so obstinately blundered or gone wrong as to
produce a result mischievous at once to the administration of justice and the interests
of the public". Vide Empress v. Gayadin I.L.R. [1881] All. 148, Queen-Empress v.
Robinson MANU/UP/0037/1894 : I.L.R. [1894] All. 212, Deputy Legal Remembrancer v.
Amulya Dwan [1941] 18 C.W.N. 666 and King-Emperor v. U San Win I.L.R. [1932]
Rang. 312. In Sheo Swarup v. King-Emperor MANU/PR/0071/1934, the question was
raised for determination by the Privy Council whether there was 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 the negative, Lord Russell observed that there was
"no indications 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 "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 weigh and consideration to
such matters as (1) the views of the trial Judge as to the credibility of the
witnesses, (2) the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been acquitted at
his trial, (3) the right of the accused to the benefit of doubt, and (4) the
slowness of an appellate Court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the witnesses".
4 5 . 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 the 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, [1921] 42
M.L.J. 253 Lord Buck master stated :

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 "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".
46. Adapting these observations to criminal trial, when the State appeals against an
order of acquittal, it 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 [915] L.R.
42 IndAp 110 :
"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".
4 7 . It is clearly these principles that Lord Russell had in mind when he made the
observations at page 404 in Sheo Swarup v. King-Emperor MANU/PR/0071/1934 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".
48. The scope of the decision in Sheo Swarup v. King-Emperor MANU/PR/0071/1934
with special reference to the observations discussed above was thus explained by the
Privy Council in Nur Mohammad v. Emperor MANU/PR/0022/1945 :
"Their Lordships were referred, rightly enough, to the decision of this Board in
the case in Sheo Swarup v. King-Emperor MANU/PR/0071/1934, 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".
49. 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.
5 0 . 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

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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 MANU/SC/0033/1951 :
1952CriLJ331 , 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".
51. 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-Emperor MANU/PR/0071/1934 and Nur Mohammad v.
Emperor MANU/PR/0022/1945. 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
MANU/PR/0071/1934, 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
reasons" 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 it laid down that in appeals against acquittal, that standard of proof required of the
appellant was far higher then 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 interest 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. 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.
52. 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

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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 MANU/SC/0015/1950
: 1950CriL J1270 interfere with it. This position is, in fact, concluded by the decisions in
Sheo Swarup v. King-Emperor MANU/PR/0071/1934 and Nur Mohammad v. Emperor
MANU/PR/0022/1945. In Sheo Swarup v. King-Emperor MANU/PR/0071/1934, the
Sessions Judge had 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 MANU/PR/0022/1945, the judgment of the High Court did not
disclose that it had considered the matters mentioned by Lord Russell at page 404 in
Sheo Swarup v. King-Emperor MANU/PR/0071/1934. 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
eyewitnesses. 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..."
5 3 . 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 had 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.
54. 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 bloodstained 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 intimacy 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 he was going to offer a green coconut to
Mahadevji, "an expression" say the learned Judges "which in common parlance means

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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.
5 5 . 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 Panchnama, Ex. 21 itself that the Panch had suspected that there were
marks of human blood on this axe".
56. But all the same, he discounted the value of this evidence, 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, 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 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.
57. 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".
58. It has not been explained and 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 he 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 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

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this reasoning.
59. 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
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.
60. 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 how this evidence will prove the prosecution case beyond
reasonable doubt. At best, it will suffice to raise suspicion against the accused".
61. But if the beard was discovered by the appellant, then surely it is a valuable link in
the chain of evidence against him.
62. 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 lock-up 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

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possibility of threats having been uttered through the bars was too remote and
unsubstantial to form the basis for any conclusion, and that all the circumstances
indicated that the confession was voluntary. These are the salient points that emerge
out of the evidence.
63. The position may be thus summed up :
(1) No special weight attaches to the findings of the Sessions Judge on the
ground 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.
64. 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 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 MANU/PR/0071/1934 and Nur Mohammad v. Emperor
MANU/PR/0022/1945 and in Pritam Singh v. The State MANU/SC/0015/1950 :
1950CriL J1270 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".

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65. 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.
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