Khalil Pasha & Orsv.Abdul Rasheed & Anr

Acquittal Upheld: Supreme Court Reiterates the Standard of Proof and the Victim's Right to Appeal Under the CrPC Amendment

Case Snapshot

Case Name: Khalil Pasha & Ors. v. Abdul Rasheed & Anr.

Citation: 2026 INSC 754

Bench: Justice K. Vinod Chandran

Date of Judgment: July 28, 2026

Area of Law: Criminal Law, Criminal Procedure, Evidence Law

Judgment in Brief

The Supreme Court allowed the appeal filed by the accused and restored the Trial Court's order of acquittal in a murder case dating back to 1988. The case had a long procedural history—the High Court initially upset the acquittal but without hearing the accused, leading to a remand. On remand, the High Court again remitted the matter to the Trial Court for fresh consideration of certain evidence. The accused appealed to the Supreme Court.

The Supreme Court conducted a thorough reappreciation of the evidence and found that the prosecution had failed to prove its case beyond reasonable doubt. The eyewitnesses were found to be untrustworthy "chance witnesses," the dying declarations were inconsistent and improbable, the scene of occurrence was not free from suspicion, and the Section 27 recovery of the weapon did not, by itself, prove the guilt of the accused. The Court also addressed a procedural question regarding the scope of revision and appeal in acquittal cases, noting that while the victim now has a statutory right to appeal under the proviso to Section 372 of the CrPC (as amended), this right had not been properly exercised in this case.

Relevant Facts

The Incident: On February 14, 1988, Qavi (the deceased) was allegedly assaulted by six accused near a tailoring shop. The prosecution alleged that after an earlier altercation, A1 to A6 assaulted the deceased with weapons, causing injuries that led to his death.

The Trial: The Trial Court examined the testimony of witnesses threadbare and acquitted the accused, finding the prosecution evidence untrustworthy.

First High Court Revision: The victim's brother filed a Criminal Revision Application before the High Court. The High Court upset the acquittal but did so without hearing the accused, as the advocate engaged for the accused had expired.

Supreme Court Remand (Annexure P13): The accused filed an SLP. The Supreme Court remitted the matter back to the High Court, noting that Section 401(2) of the CrPC restricts revisional power being exercised to the prejudice of the accused unless an opportunity for hearing is afforded.

Second High Court Order: On remand, the High Court again passed an order—this time remitting the matter to the Additional Sessions Judge to consider afresh the testimony of eyewitnesses, coupled with recoveries under Section 27 of the Indian Evidence Act and the Chemical Analysis Report. The High Court upheld the Trial Court's finding on the dying declarations.

Appeal to Supreme Court: The accused challenged the High Court's order of remit.

Issues Before the Court

1. Whether the High Court was correct in remitting the matter to the Trial Court for fresh consideration of the evidence, after having earlier upset the acquittal without hearing the accused?

2. Whether the evidence led by the prosecution—eyewitness testimonies, dying declarations, recovery under Section 27, and the Chemical Analysis Report—was sufficient to convict the accused beyond reasonable doubt?

3. Whether, in a case of acquittal under Section 302 IPC, a revision petition under Section 401 CrPC should be placed before a Division Bench or a Single Bench of the High Court?

4. Whether, given the 2009 amendment to Section 372 CrPC providing victims with a right to appeal, a revision petition in an acquittal case is maintainable, or should it be treated as an appeal?

Legal Framework

• Section 302 of the Indian Penal Code, 1860: Punishment for murder.

• Section 378 of the Code of Criminal Procedure, 1973 (CrPC): Appeal in case of acquittal—only the State could file an appeal, and that too after obtaining leave of the High Court.

• Section 372 of the CrPC (as amended by Act 5 of 2009): Proviso inserted to provide victims with a right to prefer an appeal against any order acquitting the accused, convicting for a lesser offence, or imposing inadequate compensation.

• Section 401 of the CrPC: Powers of the High Court in revision.
  Sub-section (1): The High Court may exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390, and 391.
  Sub-section (2): Restricts the revisional power from being exercised to the prejudice of the accused unless an opportunity for hearing is afforded.
  Sub-section (4): Prohibits the entertainment of any revision at the instance of a party who has a remedy to file an appeal, which had not been availed of.
  Sub-section (5): Empowers the High Court, even where an appeal lies and is not availed but the revision is filed under an erroneous belief that no remedy lies, to treat the revision as a petition of appeal.

• Section 27 of the Indian Evidence Act, 1872: How much of information received from accused may be proved—provides for admissibility of facts discovered in consequence of information given by the accused in custody.

• Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Analogous to Section 401 of the CrPC; a verbatim reproduction.

Important Precedents Relied Upon

1. Mallikarjun Kodagali v. State of Karnataka

Held that a victim is not required to pray for grant of special leave to appeal under the proviso to Section 372 of the CrPC (as amended in 2009), unlike under Section 378(4) where special leave is required. The victim has been conferred with a statutory right to appeal.

2. Joseph Stephen v. Santhanasamy

Relying on Mallikarjun Kodagali, this case held that no revision can be entertained at the instance of the victim if he has not availed of the remedy of appeal under the proviso to Section 372 CrPC. The remedy of revision is not available to a victim who has a remedy of appeal.

3. Other Precedents on Standard of Proof

The Court referred to the "legion" of decisions which speak of what constitutes a reasonable doubt and the standard of proof required in criminal trials. While no specific cases were cited, the Court relied on the well-settled principles that:

• The prosecution must prove its case beyond reasonable doubt.

• A conviction cannot be based on mere assumptions.

• Where the evidence is suspect, the benefit of doubt must go to the accused.

Court's Reasoning and Analysis

I. Procedural Issue: Revision vs. Appeal in Acquittal Cases

The Court addressed the question of whether the High Court's revision petition was maintainable or whether it should have been converted into an appeal.

The Legal Position:

• Before 2009: Section 378 CrPC only provided for an appeal in case of acquittal by the State, after obtaining leave of the High Court. The victim had no statutory right to appeal.

• After 2009: A proviso was inserted under Section 372 CrPC, giving victims a right to appeal against an order of acquittal. No special leave is required (as held in Mallikarjun Kodagali).

• Section 401(4) CrPC: Prohibits the entertainment of any revision at the instance of a party who has a remedy to file an appeal.

The Court's Finding:
The revision petition in this case was filed in 1990—at a time when the victim did not have a statutory right to appeal. However, when the High Court disposed of the matter in 2022, the 2009 amendment was in force.

The Court's Solution:
Under Section 401(5) CrPC, the High Court can treat a revision as a petition of appeal if:

• An appeal lies but is not availed

• The revision is filed under an erroneous belief that no remedy lies

The Court noted that in 1990, no appellate remedy was available to the victim. Therefore, the revision was filed under a genuine and erroneous belief that no remedy lay. The High Court could have converted the revision into an appeal.

Procedural Direction: If, as per the High Court Act and Rules, the appeal is to be considered by a Division Bench, it will have to be referred to the jurisdictional bench, which would have to be satisfied as to the erroneous belief under which the revision was filed.

II. Reappreciation of Evidence

The Court then conducted a thorough reappreciation of the evidence as led before the Trial Court.

III. Motive

Prosecution's Case: An altercation occurred between A4 and the deceased in the shop of A3. The deceased slapped A4 after a wordy duel. Later, the accused assaulted the deceased.

The Court's Finding: The motive was weak. PW4 spoke of the altercation, but cross-examination revealed that the deceased was not engaged in whitewashing (as alleged) but was in the business of selling apparels. The altercation story did not inspire confidence.

IV. Eyewitnesses

PW3, PW4, and PW8 were the eyewitnesses.

The Court's Analysis:

• PW4: Spoke of the incident and consistently referred to "Ajax" who was with him throughout. However, Ajax was never examined. This assumes significance. PW4 also did not speak of PW3 or PW8's presence.

• PW3: Was an inquest witness. His statement under Section 161 CrPC was taken two to three days after the inquest report—a delay not explained by the prosecution. He admitted that the police station was 5-7 minutes away but went to the injured's house instead of informing the police. His testimony about informing the relatives was not corroborated by PW10 (the brother).

• PW8: Was a passerby who witnessed the incident and walked away. He admitted to being closely acquainted with PW4. Despite being a moot spectator, he did not take the injured to the hospital or inform the police.

The Court's Conclusion: PW3, PW4, and PW8 were chance witnesses. While chance witnesses in a public place cannot be disbelieved for that reason alone, their testimony did not inspire confidence. Their presence at the scene of occurrence was not established, and they did not act as expected (i.e., taking the injured to the hospital or informing the police).

V. Dying Declarations

The prosecution relied on dying declarations made by the deceased to:

• PW10 (his brother)—allegedly in the auto rickshaw

• PW5 (his father)—allegedly in the hospital, 20 minutes after arrival

• PW11 (the surgeon)—allegedly in the hospital at 11:10 pm

The Court's Analysis:

• PW1 (the initial doctor): Testified that the injured was brought to the hospital by an auto rickshaw driver, not accompanied by anyone. The injured was admitted at 9:30 pm. PW1 also stated that the injured was brought unconscious and never regained consciousness.

• PW11 (the surgeon): Saw the injured at 11:10 pm (after PW1 had been attending to him for nearly 2 hours). PW11 stated in cross-examination that the injured was conscious to give a dying declaration. However, a specific suggestion was made that PW11 gave this testimony to oblige a colleague.

• PW10 and PW5: Gave inconsistent versions of when the dying declaration was made (auto rickshaw vs. hospital).

The Court's Conclusion: The dying declarations were not credible. PW1's testimony that the injured was brought unconscious and unaccompanied contradicted the dying declaration stories. The certification by PW11 that the injured was conscious at 11:10 pm could not support the dying declarations, as PW1 had already attended to the injured for nearly 2 hours and stated he never regained consciousness.

VI. Scene of Occurrence

The Court's Observation: The blood of the accused would have been spilled at the scene, since he sustained numerous cut injuries and would have been profusely bleeding. However, the Investigating Officer (PW12) prepared only a scene mahazar and made no seizures from the spot. No tell-tale signs of the brutal attack were seized.

The Court's Conclusion: The scene of occurrence was "not above suspicion."

VII. Recovery Under Section 27 of the Evidence Act

The Prosecution's Case: A weapon was recovered at the instance of A4 under Section 27. Blood stains were found on it, and chemical analysis revealed it was human blood.

The Court's Analysis:

• The prosecution did not confront the eyewitnesses with the weapon.

• The weapon was described in a manner not in consonance with its physical appearance.

• The blood was found to be human blood, but not indicated to be that of the deceased.

• Section 27 recovery alone cannot lead to a conviction.

The Court's Conclusion: The recovery under Section 27 fails to inculpate A4, as there is no connection to the crime proved beyond the human blood found.

VIII. Summary of Deficiencies

The Court summarized the deficiencies in the prosecution's case:

1. Motive fails to impress

2. Eyewitness testimonies are not trustworthy

3. Dying declarations are not credible

4. Scene of occurrence is not above suspicion

5. Expert doctors differed on the conscious state of the injured

6. The doctor who attended the patient did not record any dying declaration

7. Section 27 recovery alone cannot lead to a conviction

IX. The Standard of Proof

The Court reiterated the well-settled principles:

• The prosecution must prove its case beyond reasonable doubt.

• Where the evidence is suspect, the benefit of doubt must go to the accused.

• A conviction cannot be based on mere assumptions.

• The facts proved must provide a complete chain leading to the hypothesis of guilt being the only one possible, excluding any hypothesis of innocence.

The Court's Conclusion: The facts proved by the prosecution establish only the homicidal death—nothing more. There is nothing to inculpate the accused except eyewitness testimonies which are suspect.

Ratio Decidendi and Key Legal Principles

1. Victim's Right to Appeal Under Section 372 CrPC

The proviso to Section 372 of the CrPC (inserted by Act 5 of 2009) provides victims with a statutory right to appeal against an order of acquittal, conviction for a lesser offence, or imposition of inadequate compensation. No special leave is required (as held in Mallikarjun Kodagali).

2. Revision vs. Appeal in Acquittal Cases

Under Section 401(4) CrPC, no revision can be entertained at the instance of a party who has a remedy to file an appeal. However, under Section 401(5), the High Court can treat a revision as a petition of appeal if the revision was filed under an erroneous belief that no remedy lies.

3. Standard of Proof in Criminal Trials

The prosecution must prove its case beyond reasonable doubt. Where the evidence is suspect, the benefit of doubt must go to the accused. A conviction cannot be based on mere assumptions.

4. Evaluation of Eyewitness Testimony

While chance witnesses in a public place cannot be disbelieved for that reason alone, their testimony must inspire confidence. Where eyewitnesses do not act as expected (e.g., failing to take the injured to the hospital or inform the police), their testimony becomes suspect.

5. Dying Declarations

Dying declarations must be credible and consistent. Where the injured was brought unconscious and unaccompanied, and the doctors differ on the conscious state, the dying declarations become unreliable.

6. Section 27 Recovery Alone is Insufficient

A recovery under Section 27 of the Indian Evidence Act alone cannot lead to a conviction. It must be corroborated by other circumstances providing a complete chain leading to the hypothesis of guilt.

7. Scene of Occurrence

Where the scene of occurrence is "not above suspicion" (e.g., no seizures from the spot despite profuse bleeding), the prosecution case is weakened.

8. Benefit of Doubt

Where there is a reasonable doubt, the accused is entitled to the benefit of doubt. It is not for the courts to convict the accused on mere assumptions when the evidence fails to satisfy the judicial mind.

Important Court Observations

• "The jurisdiction to consider a revision obviously is conferred on a Single Judge or a Division Bench by the applicable High Court Act and Rules."

• "We need only notice that with regard to the above revision filed, there was ample power available on the revisional court to convert it into an appeal."

• "Chance witnesses in a public place, as found by the High Court cannot be disbelieved for that reason alone. However, their testimony, especially of the incident, does not inspire confidence."

• "The Trial Court noticed from the hospital register that PW11 had recorded in the register that the injured was brought conscious to the hospital. However, PW1 who admitted the injured was not even asked about his role other than conducting post-mortem examination."

• "PW1 deposed that the deceased was brought to the hospital by an auto rickshaw driver and was not accompanied by any relative."

• "Definitely the blood of the accused would have been spilled at the scene, since he sustained numerous cut injuries and would have been profusely bleeding at the spot from which he was alleged to have been transported to the hospital."

• "Section 27 recovery of the weapon has been proved, and blood stains were found on it... However, Section 27 recovery alone cannot lead to a conviction."

• "The facts proved by the prosecution is the homicidal death, the brutal murder of a person and nothing to inculpate the accused except the eyewitness testimonies which are suspect."

• "A brutal murder definitely, and we understand the anguish of the brother who was the revision petitioner. The murder went unavenged, but it is not for the courts to convict the accused on mere assumptions when the evidence led by the prosecution fails to satisfy the judicial mind, of the guilt of the accused."

Final Outcome

Appeal Allowed: The Supreme Court allowed the appeal filed by the accused.

Trial Court Order Restored: The order of the Trial Court acquitting the accused was restored.

Acquittal: The accused shall stand acquitted.

Release: If they are in prison, they shall be released forthwith, if not wanted in any other case. If they are already on bail, their bail bonds shall stand cancelled.

High Court Order Set Aside: The impugned order of the High Court remitting the matter to the Trial Court was set aside.

Practical Impact and Legal Strategy

Why the Judgment Matters

1. Clarifies the Victim's Right to Appeal

The judgment provides important guidance on the interplay between Section 401 (revision) and the proviso to Section 372 (victim's right to appeal) of the CrPC. It clarifies that:

• Since 2009, victims have a statutory right to appeal against acquittals

• No special leave is required (as held in Mallikarjun Kodagali)

• A revision petition filed before the 2009 amendment can be treated as an appeal if filed under an erroneous belief that no remedy lay

2. Reaffirms the Standard of Proof

The judgment reiterates the fundamental principle that the prosecution must prove its case beyond reasonable doubt. Where the evidence is suspect, the benefit of doubt must go to the accused.

3. Emphasizes the Need for Credible Eyewitness Testimony

The judgment underscores that eyewitness testimony must inspire confidence. Where chance witnesses do not act as expected, their testimony becomes suspect.

4. Limits the Evidentiary Value of Section 27 Recoveries

The judgment clarifies that a recovery under Section 27 of the Evidence Act, by itself, is insufficient to convict an accused. It must be corroborated by other circumstances.

5. Protects Against Conviction on Mere Assumptions

The judgment protects accused persons from being convicted on mere assumptions where the evidence fails to satisfy the judicial mind.

How Advocates and Litigants May Rely Upon It

For Accused:

• Cite this judgment to argue that the prosecution must prove its case beyond reasonable doubt

• Rely on the judgment to argue that Section 27 recoveries alone are insufficient for conviction

• Argue that eyewitness testimony must inspire confidence

• Rely on the principle that benefit of doubt must go to the accused

For Victims/Complainants:

• Rely on the judgment to assert the statutory right to appeal under Section 372 CrPC

• Argue that no special leave is required for a victim's appeal

• Cite the judgment to argue that a revision can be treated as an appeal if filed under an erroneous belief

For Advocates:

• Cite this judgment to argue the distinction between revision and appeal in acquittal cases

• Rely on the judgment to argue the standard of proof in criminal trials

• Use the judgment to argue the limitations of Section 27 recoveries

• Rely on the principles of evaluating eyewitness testimony and dying declarations

Can It Be Cited Before High Courts, Tribunals, or Subordinate Courts?

Yes, absolutely. This is a judgment of the Supreme Court of India (2026 INSC 754) and constitutes a binding precedent under Article 141 of the Constitution of India. It can be cited before:

• The Supreme Court of India

• High Courts

• Sessions Courts and Trial Courts

• Any authority exercising criminal jurisdiction

Practical Implications for Future Litigation

1. Victim's Right to Appeal

Victims of crime now have a statutory right to appeal against acquittals under the proviso to Section 372 CrPC. This right does not require special leave. Victims should prefer appeals rather than revisions in acquittal cases.

2. Revision in Acquittal Cases

A revision petition in an acquittal case is not maintainable if the victim has a remedy of appeal. However, if the revision was filed before the 2009 amendment (when no appellate remedy existed), the High Court can treat it as an appeal under Section 401(5) CrPC.

3. Evaluation of Eyewitness Testimony

Courts must critically evaluate eyewitness testimony. Where chance witnesses do not act as expected (e.g., failing to take the injured to the hospital or inform the police), their testimony becomes suspect.

4. Dying Declarations

Dying declarations must be credible and consistent. Inconsistencies between doctors regarding the conscious state of the injured, and the absence of dying declarations recorded by the attending doctor, weaken the prosecution case.

5. Section 27 Recoveries

A recovery under Section 27 of the Evidence Act alone is insufficient for conviction. It must be corroborated by other circumstances providing a complete chain of evidence.

6. Scene of Occurrence

The failure to seize tell-tale signs of a brutal attack (such as blood stains) from the scene of occurrence weakens the prosecution case. The scene must be "above suspicion."

7. Benefit of Doubt

Where there is a reasonable doubt, the accused is entitled to the benefit of doubt. It is not for the courts to convict on mere assumptions.

8. Homicidal Death Alone is Insufficient

The mere proof of a homicidal death is insufficient to convict the accused. The prosecution must inculpate the accused through credible evidence.

9. Procedural Issues

Where the High Court has previously upset an acquittal without hearing the accused, the accused may approach the Supreme Court challenging the order of remit. The Supreme Court can conduct a reappreciation of the evidence.

10. Judicial Empathy vs. Judicial Scrutiny

While courts understand the anguish of victims' families, they must not convict the accused on mere assumptions. Judicial empathy cannot override the requirement of proof beyond reasonable doubt.