Judgement Key Points

K. L. SHRIVASTAVA, J.

( 1 ) THIS is an application under S. 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") for expunging the expression "benefit of doubt" occurring in paragraph 14 of the order of acquittal dated 12-5-1986 passed by the Chief Judicial Magistrate, Indore, in favour of the present petitioner.

( 2 ) FACTS giving rise to this application are these: The petitioner is employed as an Assistant Engineer in the Madhya Pradesh Electricity Board at Indore. He was prosecuted by the police for having criminally misappropriated fifty bags of cement belonging to the M. P. E. B. , Indore.

( 3 ) DURING the trial, no evidence establishing the offence against the petitioner was produced.

( 4 ) IN acquitting the petitioner and his two co-accused, the learned trial Court has observed as under ; ( 5 ) THE contention of the learned counsel for the petitioner is that in the absence of any evidence against the petitioner, there was no question of his being given benefit of doubt. According to him, the petitioner was entitled to a clean acquittal. In support of his submission, he has placed reliance on the decision in Pratual Bhattacharjee's case, (1987) 2 Crimes 816 (Gauh ).

( 6 ) LOOKING to the facts and circumstances of the case, the petition deserves to be allowed.

( 7 ) IN a criminal trial, an accused is presumed to be innocent until the contrary is proved and except in cases, in which the burden is shifted to the accused by law, the unshifting burden of proving the offence in all its ingredients against him beyond reasonable doubt, rests on the prosecution. Therefore, where the proof by the prosecution is not of the requisite standard and there is a reasonable doubt touching the proof of the guilt, the accused is, as of right, entitled to an acquittal. But a remote possibility in favour of the accused cannot be made a ground for holding that there is absence of proof beyond reasonable doubt. As pointed out in the decision in Himachal Pradesh Administration v. Omprakash, AIR 1972 SC 975 , the benefit of doubt, to which the accused is entitled, is reasonable doubt, the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind. As observed in the decision in Khem Karan's case, AIR 1974 SC 1567 neither mere possibilities nor remote probabilities nor mere doubts, which are not reasonable, can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. It has to be remembered that the phrase "benefit of doubt" is to be used only when there is some evidence towards the proof of the charge but a reasonable doubt lurks in the mind regarding its worth for being accepted as the foundation for the conclusion of the guilt.

( 8 ) IN the Full Bench decision in Emperor v. V. Damapala, AIR 1937 Rang 83, it has been pointed out that the phrase "the benefit of doubt" is misleading. The accused does not receive a benefit, nor does humanity grant him some boon dictated by the instinct of mercy in opposition to the ends of justice. Where there is an element of genuine doubt, then there must be an acquittal as a matter of right and not as a matter of grace or favour. The phrase has, therefore, to be correctly understood.

( 9 ) THERE are decisions, in which the view taken is that in cases of direct evidence, the conclusion of guilt can only be rested on belief or disbelief of the testimony of eye-witnesses and in such cases, the observation that suspicion, however strong, is no proof of guilt, is not proper and that such observation cannot also be applied to cases depending on confessional evidence and is applicable only to cases depending on circumstantial evidence. In this connection, the following observations in the decision in M. G. Agarwal's case, AIR 1963 SC 200 , which is by 5 Judges, may be reproduced with advantage :"if the circumstances proved in the case are cons

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