Section 378 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
This section seeks to restrict the right of appeal against a judgment of acquittal and the Government should file an appeal against acquittal in only those cases in which grave injustice seems to have occasioned. The High Court has discretion to refuse to grant leave to appeal against an acquittal.
The Supreme Court in Gamini Bala Koteswara Rao v. State of Andhra Pradesh, observed that it is well settled by now that it is open to the High Court to re-appraise the evidence and conclusions drawn by the trail Court but only in a case when the judgment of the trial Court is stated to be perverse. The word ‘perverse’ as understood in law has been defined to mean ‘against the weight of evidence’.
Generally, order of acquittal is not interfered with but there is no embargo on Appellate Court for re-appreciating evidence in a case where admissible evidence is ignored by the trial Court.
The right of the State to appeal against acquittal stands on the same footing as the right of the convicted person to appeal against his conviction and sentence and the procedure to be adopted for disposing of the appeal in both the cases is same.
The provisions contained in Section 378 deal with appeals against acquittal and, therefore, they have no application against an order of discharge. While hearing such appeal, the Appellate Court should not lose sight of two basic principles of Criminal Law, namely: (1) presumption of innocence of the person accused unless his guilt is proved; and (2) benefit of doubt always tilts in favour of the accused. As a matter of fact, the acquittal of the convicted person by the trial Court by itself is sufficient to strengthen the presumption of innocence in his favour.
The Supreme Court in Harijana Tirupala v. Public Prosecutor, High Court of Andhra Pradesh, has observed that the Appellate Court will not be justified to interfere in an appeal against acquittal merely because other view was possible. Elaborating the point further, the Apex Court held that there is no doubt that High Court is the Court of first appeal in appeal either against an order of acquittal or conviction and has full power to review the evidence to reach its own independent conclusion.
However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, and with the passing of an order of acquittal presumption of innocence in favour of accused gets strengthened.
A duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial Court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise, the judgment will suffer from serious infirmity.
Reiterating its earlier view on power of Appellate Court in appeal against acquittal the Supreme Court once again held in the case of C. Antony v. K.G. Rahgavan Nair, that the Appellate Court has full power to reappreciate the evidence but it has to do so without coming to a definite conclusion that the findings given by trial Court are perverse.
It cannot substitute the findings of trial Court by taking a totally different perspective. In this case a complaint of dishonour of cheque was dismissed by trial Court for want of proof of advancement of money by the complainant. The High Court without holding that finding of trial Court perverse and totally on different perspective converted the acquittal into conviction. The order of the High Court was therefore set aside.
Reiterating its earlier view once again, the Supreme Court in State of Madhya Pradesh v. Munshi Singh, held that the power of the High Court while hearing an appeal against acquittal is as wide and comprehensive as in an appeal against conviction and it has full power to re-appreciate the entire evidence, but if two views on the evidence are possible, one supporting the acquittal and the other indicating conviction, then, the High Court would not be justified in interfering with the acquittal merely because it is of the view that sitting as a trial Court a different view could have been taken.
However, if the judgment of the trial Court is apparently perverse, legally erroneous and based on a wrong appreciation of the evidence, then it shall be just and proper for the high Court to reverse the judgment of acquittal recorded by the trial Court in order to eliminate gross miscarriage of justice.
In one of its earlier decisions in State of Punjab v. Sukhchain Singh, the Apex Court had observed that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by the competent Court of law.
Secondly, the accused having secured acquittal, the presumption of his innocence is further strengthened, reinforced and reaffirmed by the trial Court. The appellate Court should re-appreciate the evidence in the light of these presumptions while deciding an appeal against acquittal.
The Apex Court in N. Somashekar v. State of Kamataka, held that intervention in appeal against acquittal is limited evidence was not properly analysed and conclusion drawn was based on suimises and conjectures. The only criterion is that if the view taken by the trial Court is reasonable and possible view, interference should not be made. In the instant case, the evidence clearly establishes that accused was the perpetrator of the crime. The High Court was, therefore, justified in directing conviction and imposing the sentence.
The High Court of Delhi in Parvati Devi v. State, has observed that a reading of sub-section (2) of Section 378 sufficiently shows that wherever the Parliament so intended, it made a provision to cater to special situations like appeals in cases investigated by the Special Delhi Special Police Establishment or cases investigated by other agencies involving commission of offences under any Central enactments.
So also if the Parliament intended to make any distinction between cases involving commission of offences under the I.P.C. and others involving offences under any special enactment, it would have made a suitable provision to that effect which it has not. It, therefore, follows that sub-section (4) to Section 378 applies as much to cases instituted upon complaints for offences under the I.P.C. as it does apply to complaints involving any other offence under any special enactment.
Sub-section (5) prescribes a period of limitation of 60 days for making an application for grant of special leave to appeal against an order of acquittal at the instance of complainant which is 90 days from the date of order in case appeal by the State.
Where the State is not inclined to prefer an appeal against acquittal of the convicted person, the complainant can invoke the revisional jurisdiction of the Sessions Court.
Where the accused had shot the deceased by country-made pistol and injured others by lathis over an alleged dispute about a plot of land. The trial Court acquitted the accused disbelieving motive and absence of injury caused by country-made pistol on the body of the deceased.
In appeal, the High Court after reappraisal of evidence reversed the acquittal by showing how the reasons recorded by trial Court for acquittal were opposed to weight of available evidence. The Supreme Court held that the reversal of acquittal by High Court was proper and well justified.
In State of Madhya Pradesh v. Dharkole, the Court had acquitted the accused by putting stress on aspects like political party of the accused etc. Inference drawn by Court that conduct of eye-witness was unusual, was not proper.
The reasons for not examining the independent witnesses were also not given by the prosecution. Under the circumstances it was held that judgment of acquittal was indefeasible and liable to be set aside.
The Supreme Court has reiterated the principles laid down by the Privy Council in regard to appeal against acquittal and held that while considering such appeal the High Court should give proper weight to the consideration that in finding of fact arrived at by a Judge of the trial Court is based on credibility of witnesses whom he had opportunity to examine in person.
The entire law relating to the powers of the appellate Court regarding appeals against acquittal was restated once again by the Supreme Court in its decision in Dhanna v. State of Madhya Pradesh, wherein it was held that the High Court should upset an order of acquittal only when there are compelling and substantial reasons to dispel the reasons of the trial Court for passing an order of acquittal.
The High Court should not interfere with the order of acquittal unless the findings of the trial Court are patently unreasonable and perverse. It has further to show that the reasons given by the trial Court were too slender for ordering an acquittal of the convicted person.
In Kashiram and others v. State of Madhya Pradesh, decided by the Supreme Court on October 17, 2001, the Court once again reiterated the scope of High Court’s power to reappraise the evidence and interfere with the order of acquittal only where if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court should not interfere merely because that it feels that sitting as a trial Court its view would have been one of recording a conviction.
Therefore, as a necessary corollary it follows that it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial Court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.
The Supreme Court has held in the case of Muluwa v. State of Madhya Pradesh, that where on the basis of evidence two views are reasonably possible, one expressed by the trial Court and the other reached by the appellate High Court in the absence of any material irregularity or illegality or manifest error, the High Court in an appeal against acquittal should refrain from interfering with the order of acquittal.
Sub-section (3) provides that an appeal against acquittal should be entertained with leave of High Court. Where the High Court refuses leave to appeal under Section 378 to the State, it must assign reasons therefore and make a speaking judgment. Refusal for leave to appeal without assigning reasons and without making a speaking order is liable to be set aside and the Supreme Court may direct the High Court to restore the appeal.
In the case of Public Prosecutor v. Mahadi Thirupathi Reddy, the propriety of refusal to file appeal against acquittal was challenged before the Supreme Court. In this murder case the accused was alleged to have used chili powder for commission of murder.
Chili powder however, was not found on the body of deceased or at the scene of occurrence. The Supreme Court held that refusal of leave to appeal merely on these grounds was not proper when evidence of prosecution witnesses was clearly to the effect that the accused had killed the deceased.
In the case of Sangappa v. State of Karnataka, the accused was convicted under Sections 304, Part II read with Section 34, IPC for fatally assaulting deceased for interfering in matter concerning illicit relationship of sister of accused.
The Appellate Court relying on evidence of mother of deceased, the only eye-witness, without assigning any reason set aside the finding of trial Court that her presence at the scene of offence was highly doubtful.
The Appellate Court did not take into consideration the nature of injuries caused to deceased nor medical evidence. There was nothing to show why accused were liable to be convicted only under Section 304, Part II and not for murder under Section 302, I. P. C. The conviction of accused under Section 304 Part 11/34 IPC was therefore set aside.
In State of Rajasthan v. Biram Lai, the Supreme Court set aside the order of acquittal as proof of rape had been established against the accused. In this case, the accused had allegedly entered in the room of prosecutrix in the night and committed rape on her. Testimony of prosecutrix was quite clear, categorical and implicitly reliable.
It was corroborated by her mother, brother and other witnesses. Prosecutrix who was mother of three children was examined after several days of occurrence. One would not, therefore, expect medical evidence to significantly improve the case of prosecution or defence. Non- production of Chemical Examiner’s Report had deprived prosecution of any corroborative evidence.
Testimony of prosecutrix and other witnesses was free from any blemish. The High Court had misread the evidence and acquitted the accused holding that mother of prosecutrix and other witness did not support the prosecution story. But it had not pointed out any inconsistency or infirmity in evidence of the prosecutrix. Moreover, the High Court had upheld conviction of the accused for trespassing thereby confirming version of prosecutrix. As such, the order of acquittal was liable to be set aside.
In an appeal against acquittal in a rape case the finding of the trial court that a single man could not commit rape on healthy adult female, there being no cye-witness except the prosecutrix, was held to be improper. Acquittal was set aside
An order remanding the case for re-trial without recording the finding that the acquittal was erroneous was held to be illegal.
The Supreme Court in Chandrappa v. State of Karnataka has laid down general principles regarding powers of appellate Court while dealing with appeals against acquittal. They may be briefly stated as follows:
(1) An Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal was founded.
(2) The Code of Criminal Procedure puts no limitation, restriction or condition on exercise of such power and Appellate Court on the evidence before it may reach its own conclusion, both on question of law and of fact.
(3) Various expressions such as ‘substantial and compelling reason’, ‘good and sufficient’ ground, ‘distorted conclusions’, ‘glaring mistakes’ etc. are not intended to curtail the extensive powers of an Appellate Court in an appeal against acquittal.
(4) An Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under fundamental principles of criminal jurisprudence and secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.
The Supreme Court in State of Madhya Pradesh v. Bacchudas, observed that generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by his acquittal.
Where two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration is that miscarriage of justice is prevented.
In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re- appreciate the evidence where the accused has been acquitted for the purpose of ascertaining whether any of the accused really committed any offence or not.
Commenting on appeal against acquittal of the accused under Section 378, the Supreme Court in Girija Prasad (deceased) through Legal Representative v. State of Madhya Pradesh, held that it is the bounden duty of the appellate Court to reconsider the entire evidence and decide whether the acquittal of the accused is justified or not.
The acquittal of the accused is based on the principle that he should be considered to be innocent unless his guilt is proved on the basis of evidence against him. Appeal against acquittal should therefore be allowed only when the Court comes to the conclusion that the acquittal was not proper and not justified under the law.
In Lalu Frasad Yadav Si another v. State of Bihar & another, disposing of an appeal against acquittal, the Apex Court held that the opening words in Section 378 (1)— “save as otherwise provided in sub-section (2)” clearly show that they are in the nature of exception intended to exclude the class of cases mentioned in sub-section (2) out of the operation of the body of sub-section (1).
These words qualify the operation of sub-section (1) and take out of its purview two types of cases, namely, (i) the cases in which offence has been investigated by the Delhi Special Police Establishment constituted under 1946 Act and (ii) offences in which investigation has been done by agency empowered to investigate under any Central Act other than the Cr. P.C. such as CBI.
Under these circumstances, an order passed by Special Judge, CBI, acquitting accused persons cannot be challenged by the State Government in view of exceptional clause in Section 378 (1) and the State Government is not competent to direct its public prosecutor to file an appeal against the said acquittal order.