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procedure or disregard of legal principles amounting to a denial of fair trial and resulting in grave injustice. Ratio |
Under the Constitution, the position of the Supreme Court which has taken t he place of the Privy Council is this. Ratio |
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 Procedu... |
The question was considered by this Court in Pritam Singh vs 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 exceptio... |
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 vs The King(4). PRE |
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. PRE |
(2) [1932] L.R. 59 I.A. 233, 235. PRE |
(3) , 458. PRE |
(4) A.I R. 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. PRE |
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". PRE |
The preceding article referred to in the opening passage is clearly article 134. Ratio |
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. STA |
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 vs The State(1) that like the Privy Council this, Court would not function as a further court o... |
Having regard to the principles enunciated in this decision. Ratio |
, the question is whether there are sufficient grounds for interfering with the judgment of the High Court in the present appeal. Ratio |
The point which the learned Judges had to decide in the appeal was whether it was the appellant who had murdered Jetha. Ratio |
That is a pure question of fact turning on appreciation of evidence. Ratio |
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. Ratio |
Does that decision call for our interference in special appeal?.No, unless this Court is to 'function as a court of appeal on facts. Ratio |
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 be... |
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 tribu... |
In Sheo Swarup vs 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. Ratio |
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) All. 148.(2) All. 212.(3) (4) Rang.312, (5)[1934] L.R. 61 I.A. 398, 403, 404. 1303 "... |
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... |
These observations, however, do not mean that the scope of appeals against acquittals is different from that of other appeals. Ratio |
They merely embody the principles applicable to all appeals, civil and criminal, to appeals alike against conviction and acquittal. Ratio |
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. Ratio |
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". Ratio |
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. Ratio |
The oft repeated observation that on acquittal the presumption of innocence becomes reinforced is merely this principle stated in terms of criminal law. Ratio |
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. Ratio |
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. . PRE |
In making these observations their Lordships have no desire to restrict the discretion of the Appellate Courts in India in the consideration of evidence". PRE |
It is clearly these principles that Lord Russell had in mind when he made the observations at page 404 in Sheo Swarup vs 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... |
The scope of the decision in Sheo Swarup vs King Emperor(2) with special reference to the observations discussed above was thus explained by the Privy .Council in Nur Mohammad vs Emperor(3): "Their Lordships were referred, rightly enough to the decision of this Board in the case in Sheo PRE |
(1) [1915] L.R. 42 I.A. 110; 118. PRE |
(2) [1934] L.R. 61 I.A. 398. PRE |
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 th... |
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. Ratio |
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. Ratio |
They are not found in section 417. Ratio |
As far as I have been able to discover, it was first used in Surajpal Singh and others vs 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,... |
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? PRE |
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 vs King Em (1) [1934] L.R. 61 I.A. 398.(2) ; , 201.1306 pero... |
But it is probable that these words were intended to express, as were the similar words of Lord Russell in Sheo Swarup vs 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. Ratio |
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 indefini... |
That is the impression which I have formed in the appeals which have come before me. Ratio |
in this Court. Ratio |
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. Ratio |
And this danger is all the greater when the phrase is of undefined import, and relates to appreciation of evidence. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
(1) [1934] L.R. 61 I.A. 398. Ratio |
(2) A.I.R. 1945 P.C. 151. Ratio |
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... |
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 qu... |
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 vs The State(1) interfere with it. Ratio |
This position is, in fact, concluded by the decisions in Sheo Swarup vs King Emperor(2) and Nur Mohammad vs Emperor(3). PRE |
In Sheo Swarup vs King Emperor(2), the Sessions Judge bad characterised the prosecution witnesses as liars, and disbelieving their evidence had acquitted the accused. PRE |
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. Ratio |
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... |
In Nur Mohammad vs 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) ; (2) [1934] L R. 61 I.A. 398, (3) A.I.R 1945 P.C. 151.165 1308 in Sheo Swarup vs King Emperor(1). Ratio |
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. Ratio |
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. " Ratio |
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. Ratio |
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. Ratio |
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 learne... |
This is sufficient to entail the dismissal of this appeal. Ratio |
But, having gone through the evidence, I am of opinion that even on the merits the decision of the High Court is correct. Ratio |
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 hi... |
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. Ratio |
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. Ratio |
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". Ratio |
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. Ratio |
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. Ratio |
The Sessions Judge, was not prepared to accept this statement and observed: "Accused admits that this is his axe. Ratio |
In light of chemical analysis, there is no doubt that there were stains of human blood on the axe. Ratio |
It is also mentioned in the Pancbnama, exhibit 21 itself that the Panch had suspected that there were marks of human blood on this axe". Ratio |
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". Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
It is difficult to follow this criticism. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
As the parcel was received intact by the Chemical Analyst at Bombay, it is difficult to see what the point of the criticism is. Ratio |
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. Ratio |
However, there is no doubt that the procedure adopted by the doctor is wrong, and is capable of mischief". Ratio |
It has not been explained and it is not possible to divine what that mischief could have been in this case. Ratio |
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. Ratio |
"Anxious to wound, afraid to strike" would appropriately describe the situation. Ratio |
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. Ratio |
I am unable to find any answer to this reasoning. Ratio |
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 t... |
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. Ratio |
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. Ratio |
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