Karnataka High Court
State Of Karnataka vs M Bramhachari @ Bramhi on 4 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
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CRL.A No. 908 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO. 908 OF 2015
BETWEEN:
1. STATE OF KARNATAKA
REPRESENTED BY POLICE INSPECTOR AND
STATION HOUSE OFFICER,
INDIRANAGAR POLICE STATION,
BENGALURU-560038.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE ADDL.SPP.)
AND:
1. M. BRAMHACHARI @ BRAMHI,
s/o B. MARALIGACHAR
30 YEARS,
R/O E:207D, C-83, 1ST MAIN,
8TH CROSS, OPP:MANJUNATHA MEDICALS STORE
Digitally signed by GARUDACHAR PALYA,
GAVRIBIDANUR BENGALURU-560048.
SUBRAMANYA ...RESPONDENT
GUPTA SREENATH
Location: High Court (BY SRI SRIHARI DESHPANDE, ADVOCATE FOR
of Karnataka
SRI L. HARISH KUMAR., ADVOCATE)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 09.06.2014 MADE IN S.C. NO.1361/2012 ON THE FILE
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CRL.A No. 908 of 2015
OF THE FTC-III, MAYOHALL UNIT, BENGALURU, ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 436 AND 381 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed the present criminal appeal against the judgment and order of acquittal dated 09.06.2014 made in S.C. No.1361/2012 on the file of the Fast Track Court-III, Mayohal Unit, Bengaluru, acquitting the respondent/accused for the offences punishable under the provisions of Sections 436 and 381 of IPC.
2. It is the case of the prosecution that the complaint came to be lodged by PW1 - Srikanta, who is the General Manager of Ahluwalia Contractors (India) Limited, stating that on 15.01.2012 at about 5.30 a.m., he received information from the owner of the building that fire broke out in the building of his office. Accordingly, he informed the same to the Fire Brigade and they came to the office and extinguished the fire and thereafter he went inside and noticed that the computers, Air-conditioners, Printers, tables and other furniture -3- CRL.A No. 908 of 2015 were burnt. He went along with the staff to the locker room and found that locker was broken and some amount was stolen. He has stated that the loss caused in the fire accident from the furniture etc., is around Rs. 6,00,000/- and some amount kept in the locker was also stolen.
3. Based on the aforesaid complaint, the jurisdictional police registered case in Crime No.25/2012 for the offences punishable under Sections 436 and 380 of IPC. During the investigation, the complainant made a statement that the shortage of amount is to the tune of Rs.2,36,600/-. After completion of investigation, the Police filed the charge sheet against the accused. After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charge for the offences punishable under Sections 436 and 381 of IPC and read over and explained to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined on its behalf six witnesses as PWs.1 to 6 and got marked 10 material documents - Ex.P.1 to 10 and eight Material Objects - -4- CRL.A No. 908 of 2015 MOs.1 to 8. On behalf of the defence, got marked one document - Ex.D1. After completion of evidence of the prosecution witnesses, the learned Sessions Judge recorded the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances appearing against him and also the case set up by the prosecution, but not adduced any defence evidence.
5. Learned Sessions Judge based on the aforesaid pleadings, framed two points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge answered both the points in the negative holding that the prosecution failed to prove beyond reasonable doubt that on 15.01.2012, the accused being a driver, working at No.240, 2nd Stage, 13th Cross, 1st Floor R.S. Plaza stepped into the office and broken almirah of accounts Section and stolen Rs.2,33,657/-, thereby committed offence under Section 381 of IPC and further recorded a finding that the prosecution has failed to prove beyond reasonable doubt that on the said date, he has broken the lock of the almirah forcibly and removed Rs.2,36,657/- and thereafter in order to escape from -5- CRL.A No. 908 of 2015 the office, lit fire to the office, thereby the computers, furniture and documents have been burnt, thereby he has committed the offence under Section 436 of IPC. Accordingly, the learned Sessions Judge by the impugned judgment of acquittal, acquitted the accused for the aforesaid offences. Hence, the prosecution filed the present appeal.
6. We have heard the learned counsel for the parties.
7. Sri. Vijay Kumar Majage, learned Addl. SPP vehemently contended that the impugned judgment and order of acquittal passed by the trial court acquitting the accused for the offences punishable under Sections 436 and 381 of IPC, is erroneous and contrary to the material on record and not sustainable in law. He contended that the trial court while acquitting the accused, has not analyzed or appreciated the evidence of PW1 - complainant and the contents of Ex.P1 - complaint in the proper perspective. He further contended that the trial Court not examined the owner of the building, who initially noticed fire in the building and also not appreciated the evidence of PWs.3 and 4, who are material witnesses to the prosecution. He further contended that in the statement recorded under Section 313 of the Code of Criminal -6- CRL.A No. 908 of 2015 procedure, the accused has not offered any explanation, which clearly indicates that the accused has committed offence. The said material has not at all been considered by the learned Sessions Judge, thereby erroneously acquitted the accused. Therefore, he sought to allow the appeal.
8. Per contra, Sri. Srihari Deshpande, learned counsel for the respondent-accused while justifying the impugned judgment and order of acquittal, has contended that admittedly the accused was working as a driver to the Special Officer in the said Company, but the Special Officer has not been examined to prove the conduct of the accused. In the complaint, it is not mentioned the exact amount which is stolen in the incident. No ledger or documents are produced in proof of amount having been kept in the locker. He would further contend that PW1 who is the complainant and General Manager of the Company has admitted in his evidence that they appointed security guard. Admittedly, the security guard was not at all examined. In the cross-examination of PW1, he has admitted that they have not secured certificate from the KPTCL to know whether there was short circuit in the Company on the date of the incident. No documents are produced to prove that -7- CRL.A No. 908 of 2015 it was the accused, who has stolen the amount from the locker of the company and lit fire to the office. Absolutely there are no eye witnesses, last seen theory and the prosecution has not produced any material to prove the motive on the part of the accused to lit fire to the office, where he was working as a driver to the Special Officer. He would further contend that the scope of the appeal filed by the State against the judgment of acquittal is very limited and unless the State shows perversity in the judgment of the trial Court, this Court cannot interfere with the impugned judgment. In the present case, the impugned judgment and order passed by the trial Court is just and proper and there is no perversity in the impugned judgment of acquittal. Therefore, he sought to dismiss the criminal appeal.
9. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present criminal appeal is:
"Whether the appellant/State has made out any ground to interfere with the impugned judgment and order of acquittal passed by the trial Court acquitting the respondent/accused for the -8- CRL.A No. 908 of 2015 offences punishable under Sections 436 and 381 of IPC, in exercise of the appellate powers of this Court under Sections 378(1) and (3) of the Code of Criminal Procedure, in the facts and circumstances of the case ?"
10. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
11. This Court being the appellate Court, in order to re- appreciate the entire oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
(i) PW1-Srikanta was working as a General manager in Ahluwalia Contractors (India) Limited since two years prior to the incident. He deposed that on 15.1.2012 in the morning, he got the information from PW2 that the fire broke out in his office.
Accordingly, he went to office at about 6.30 a.m. and by that time, fire Brigade and -9- CRL.A No. 908 of 2015 Police were already there on the spot and they extinguished the fire, in full at about 7.45 a.m. At about 8.00 a.m., he went inside the office and noticed that number of records, furniture, computers, air conditioners, copying machine, almirah were burnt. Then he observed that door of the room in which the amount of company was kept was forcibly broke open and also one steel almirah in which amount was kept was broke open. He has stated that the loss caused to the company in the fire incident is to tune of Rs.6 to 8 lakhs.
Accordingly, he lodged the complaint -
Ex.P1 before the Police. The police inspected the spot and mahazar was drawn as per Ex.P2. He further deposed that after verification of the accounts, it is found that an amount of Rs.2,30,460/- was missing. He supported the case of the prosecution.
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CRL.A No. 908 of 2015
(ii) PW.2 - Venugopal, who is Manager of the Company has deposed that he knows the accused and he is the driver of the Company car. When he was in the house, he received telephone call from the owner of the building that there was fire in the company's office. Accordingly, he informed both the police and Fire Brigade over phone and visited the spot. He also informed PW.1 over phone regarding the incident. When he went to the spot, by that time, the fire Brigade and Police were present to extinguish the fire. PW.1 also came to the spot. By that time, the computers, furniture, chairs, tables, air conditioners and documents in the office were burnt and observed that door of the room in which the amount of the company was kept was forcibly broke open and also the steel almirah in which amount was kept was broken open. He deposed that the loss
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CRL.A No. 908 of 2015 caused to the company in the incident is to the tune of Rs.15 Lakhs. Accordingly, PW.1 lodged the complaint to the Police and the Police drawn the mahazar - Ex.P2 and he has signed the mahazar. He further stated that during the course of enquiry after verification of accounts of the office, it is found that a sum of Rs.2,30,450/- was missing. He supported the case of the prosecution.
(iii) PW.3 - Manoj Panth deposes that he knows PWs.1 and 2, who are working as Manager and General Manager in their company. He knows the accused, who is working as driver of the car in the Company. He is the witness to Ex.P4 - spot mahazar under which MOs.4,5,6 and 7 were seized. He identified the said MOs. He supported the case of the prosecution.
(iv) PW.4 - Babu Kumar is the witness to the seizure mahazar - Ex.P5 under which a
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CRL.A No. 908 of 2015 sum of Rs.2,03,000/- and screw driver were recovered from the house of the accused.
(v) PW.5 - H.S. Raghu is the Head Constable,
who was deputed to apprehend the
accused and accordingly, he apprehended the accused and produced before the Police Inspector. Ex.P7 is the report. He supported the case of the prosecution.
(vi) PW.6 - D. Kumar is the Investigating Officer. He has stated that PSI (CW.12) visited the spot and drawn the mahazar as per Ex.P2 and seized Mos.1 to 3. He further deposed that during the course of investigation, he draw the spot mahazar - Ex.P4 under which MOs.4,5,6 and 7 were seized so also seizure mahazar - Ex.P5 under which a sum of Rs.2,03,000/- and screw driver were recovered from the house of the accused. After investigation,
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CRL.A No. 908 of 2015 he filed the charge sheet. He supported the case of the prosecution.
Based on the aforesaid material on record, the learned Sessions Judge has acquitted the accused.
12. At this stage, it is relevant to refer to the gist of the complaint - Ex.P1. In the complaint - Ex.P1 lodged by PW.1, who is the General Manager of Ahluwalia Contract (India) Limited, under the heading 'subject' it is mentioned with regard to the fire accident occurred to their company. The gist of the complaint lodged by PW.1 is that on 15.1.2012 at about 5.30 a.m., he received information from the owner of the building that fire broke out in the building of his office. Accordingly, he informed the same to the Fire Brigade and they came to the office and extinguished the fire and thereafter he went inside and noticed that the computers, Air-conditioners, Printers, tables and other furniture were burnt. He went along with the staff to the locker room and found that locker was broken and some amount was stolen. He has stated that the loss caused in the fire incident to the furniture etc., is around Rs. 6,00,000/- and some amount kept in the locker was also stolen and sought
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CRL.A No. 908 of 2015 for taking action against the concerned miscreants. Accordingly, the jurisdictional Police registered the case on 15.1.2012 at 11.09 a.m. in Crime No.25/12 for the offences punishable under Sections 436 and 380 of IPC against unknown persons.
13. As stated supra, in the complaint - Ex.P1 lodged by PW.1, who is the General Manager of the Company, under the heading, 'subject', it is only stated with regard to the fire accident occurred to their office and has not mentioned what is the exact amount stolen and admittedly, Ex.P1 - complaint lodged against unknown miscreants. In the categorical terms, PW.1 has stated in the complaint that some miscreants opened the room and the almirah and stolen the amount. Whereas the evidence of PW.2, who is another Manager of the Company depicts that in the fire accident, the door of the room in which the amount of the Company was kept was forcibly broke open and the steel almirah in which amount was kept was broke open by somebody and stolen the amount. In the evidence of PWs.1 and 2, they have not mentioned what is the amount stolen and not produced any document to prove that they have really kept the amount in the office and also not produced any
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CRL.A No. 908 of 2015 ledger in proof of what is the amount kept and what is the amount stolen and baldly stated that an amount of 2,30,450/- was found missing.
14. PW.2 has stated they went along with the office staff to the locker room and noticed that the amount is found missing. Admittedly, the staff with whom he went inside the locker room where cash was kept in the almirah, was not examined.
15. It is stated by PW.1 in his evidence that due to the fire incident, they suffered loss to the tune of about 6 to 8 lacs, whereas PW.2 states loss is about Rs.15,00,000/-, thereby there is no consistency in the evidence of PWs.1 and 2. In view of evidence of PWs.1 and 2 and the averments made in the complaint - Ex.P1 that the fire broke out in the building of the office, the case of the prosecution about theft of the amount by the accused is doubtful.
16. It is also not in dispute that PW.1 has admitted in his evidence that they have appointed the Security Guard. Admittedly, the Security Guard was not examined to know as to whether the accused was inside the office on the date and time
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CRL.A No. 908 of 2015 of the incident. Nobody has seen the accused having been in the office after the office hours nor any material document is produced in support of the same. It is also not in dispute that according to PWs.1 and 2, accused was working as driver in the company under the Special Officer and admittedly, the Special Officer has not been examined to prove the conduct of the accused. It is also not in dispute that PW.1 has not produced any certificate issued by the KPTCL authorities as to whether the incident is because of short circuit. No document produced in proof of what was the amount kept in the office and what is the amount missing and it is only stated by PWs.1 and 2 in the air that some amount was missing, thereby the very case of the prosecution is doubtful.
17. PW.1 admitted in the cross-examination that with regard to the exact amount kept in the office and the denominations of the currency notes, the same was not stated before the Police. He also admitted that he is not aware whether any departmental enquiry initiated against the accused. He has further admitted in the cross-examination that he is not aware as to whether the Police have recovered the amount from the accused. Very strangely, PW.4, who is
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CRL.A No. 908 of 2015 the witness to the spot mahazar - Ex.P5 has deposed that the Police went and searched the house of the accused and recovered one screw driver and an amount of Rs.2,03,000/- of Rs.500 denomination notes. He further stated that the office where the fire accident occurred is in front of his house. He has stated that he did not know address of the accused. He further admitted in the cross-examination that he has not went to the Police Station any time prior to the incident and his house is about one kilometer from the Police Station. He further stated that he no connection with the Company of the complainant and he is not interested in the affairs of the company. He further admitted that the screw driver - MO.8 is easily available in the market.
18. Very interestingly, though in the charge sheet, 13 witnesses were cited, but before the Court only six witnesses were examined. Out of six witnesses examined, PWs.1 and 2 are General Manager & Manager of the Company; and PWs.5 and 6 are Police personnel. PW.4, who is the stock witness to the Police admitted in the cross-examination that he has no relationship with the affairs of the company and he is not aware of address of the accused.
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CRL.A No. 908 of 2015
19. Admittedly, the jurisdictional Police not produced any material documents to prove the involvement of the accused in the commission of the offence and proceeded to implicate the accused only on the basis of the voluntary statement of the accused, which is impermissible under Section 27 of the Evidence Act. It is well settled that the alleged voluntary statement of the accused cannot amount to substantive evidence and even the recovery of the properties produced by the accused will not be covered by Section 27 of the Evidence Act, thereby the accused is entitled for the benefit of doubt.
20. It is also well settled that the confession made by the accused cannot be said to have led to recovery of stolen ornaments and the confession is not admissible. In the present case, except the voluntary statement of the accused, there is no other corroborative evidence to prove the guilt of the accused.
21. PW.6, who is the Investigating Officer has admitted in the cross-examination that the office of the company is in the first floor building and in the said building, there are other families also residing apart from owner of the building and he
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CRL.A No. 908 of 2015 did not remember how many houses are there in the said building. Even though he has made statement that each house has separate electric meter, he has not found any installation of CCTV camera around the building. He further admitted in the cross-examination that it is true that the lock of the office premises was broken from the outside door. The complainant did not furnish the documents regarding the amount which was in the office and they have not enquired the Security Guard nor obtained his statement. The attendance register not furnished by the Manager of the company and he did not remember that 15.1.2012 was a Government holiday. PW.6 further admitted in the cross-examination that he did not enquire regarding the house in which currency notes was seized, is a own house or a rented house. The parents of the accused are also residing in the said house. He did not obtain signature of the neighbors and denied that it is false to suggest that they have not obtained the finger print of the accused. Admittedly, no material documents are produced to prove the finger prints of the accused either on the currency or in the office. It is not the case of the prosecution that since the entire office was burnt, they could not get finger print expert
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CRL.A No. 908 of 2015 opinion. PW.6 further admitted in the cross-examination that the house in which the currency notes were seized is in the first floor. He did not enquire who is residing in the first floor. He has further admitted in the cross-examination that he has not written in the mahazar about how many floors in the said building. He further denied the suggestion that the house in which currency notes were seized does not belong to the accused and therefore, he did not obtain any documents in respect of the said house. Though he has admitted in the cross- examination that they have obtained report from the Electric expert, the same was not produced.
22. Considering the aforesaid material on record, the learned Sessions Judge has rightly acquitted the respondent/accused for the offences punishable under the provisions of Sections 436 and 381 of IPC.
23. In the present case, PW.4 is the stock witness and admittedly, the Police have not examined any witness in the locality as contemplated under Section 100(4) of the Code of Criminal Procedure and on that ground also the prosecution has
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CRL.A No. 908 of 2015 not made out any ground to interfere with the impugned judgment of acquittal.
24. The scope of the appeal filed by the State against the judgment of acquittal is very limited and unless this Court while considering the material on record finds that the findings of the learned Sessions Judge are perverse, this Court cannot interfere with the judgment of acquittal. This Court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial Court is found to be perverse judgment. Even if two reasonable conclusions are possible on the basis of the evidence on record, this Court should not disturb the findings of acquittal recorded by the trial Court. In the present case, the findings recorded, the reasons assigned and the conclusion arrived at by the trial Court are sound and proper.
25. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Arulvelu v. State reported in (2009) 10 SCC 206, wherein the Hon'ble Supreme Court held at paragraphs 33 and 40 as under:
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33. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of
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CRL.A No. 908 of 2015 the court to review the evidence and to come to its own conclusion.
(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 is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. 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."
40. Unquestionably, the appellate court has power to review and reappreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be a perverse
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CRL.A No. 908 of 2015 judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallised by the aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court.
26. The Hon'ble Supreme Court while considering the scope of the appeal under Section 378 of the Code of Criminal Procedure in the case of Chaman Lal v. State of H.P reported in AIR 2021 SC 46, has held at paragraphs 9 and 9.1 as under:
"9. Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 CrPC and the interference by the High Court in an appeal against acquittal is required to be considered.
9.1. In the case of Babu v. State of Kerala [(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179], this Court had reiterated the principles to be followed in an appeal against acquittal under
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Section 378 CrPC. In paras 12 to 19, it is observed and held as under : (SCC pp. 196-99) "12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. [(1975) 3 SCC 219 : 1974 SCC (Cri) 837]
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, Shambhoo Missir v. State of Bihar [ (1990) 4 SCC 17 : 1990 SCC (Cri) 518] , Shailendra Pratap v. State of U.P. [ (2003) 1 SCC 761 : 2003 SCC (Cri) 432] , Narendra Singh v. State of M.P. [ (2004) 10 SCC 699 : 2004 SCC (Cri) 1893], Budh Singh v. State of U.P. [(2006) 9 SCC 731 : (2006) 3 SCC (Cri) 377] , State of U.P. v. Ram Veer Singh [, (2007) 13 SCC 102 : (2009) 2 SCC (Cri) 363] , S. Rama Krishna v. S. Rami Reddy [ (2008) 5 SCC 535 : (2008) 2 SCC (Cri) 645], Arulvelu v. State [(2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] , Perla Somasekhara Reddy v. State of A.P. [(2009) 16 SCC 98 : (2010) 2 SCC (Cri) 176] and Ram Singh v. State of H.P. [(2010) 2 SCC 445 : (2010) 1 SCC (Cri) 1496] )
13. In Sheo Swarup v. King-Emperor [ 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398] , the Privy Council observed as under : (IA p. 404) ' ... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as
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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 any 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.'
14. The aforesaid principle of law has consistently been followed by this Court.
(See Tulsiram Kanu v. State [1951 SCC 92 : AIR 1954 SC 1 : 1954 Cri LJ 225] , Balbir Singh v. State of Punjab [AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [ AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [(1970) 2 SCC 450 : 1970 SCC (Cri) 479], Sambasivan v. State of Kerala [ (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [(2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .)
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15.In Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under
: (SCC p. 432, para 42) '(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review
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the evidence and to come to its own conclusion.
(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 is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. 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.'
16. In Ghurey Lal v. State of U.P. [(2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60] , this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due
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CRL.A No. 908 of 2015 weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh [(2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069] , the Court again examined the earlier judgments of this Court and laid down that : (SCC p. 374, para 20) '20. ... An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.'
18. In State of U.P. v. Banne [(2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include : (SCC p. 286, para 28) '(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
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(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.' A similar view has been reiterated by this Court in Dhanapal v. State [(2009) 10 SCC 401 : (2010) 1 SCC (Cri) 336] .
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and
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CRL.A No. 908 of 2015 further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
27. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the dictums of the Hon'ble Supreme Court stated supra, we do not find any ground to interfere with the impugned judgment of acquittal passed by the trial Court, in the facts and circumstances of the case.
28. For the reasons stated above, the point raised in the present criminal appeal is answered in the negative holding that the appellant/State has not made out any ground to interfere with the impugned judgment and order of acquittal passed by the trial Court acquitting the respondent/accused for the offences punishable under Sections 436 and 381 of IPC, in exercise of the appellate powers of this Court under Sections 378(1) and (3) of the Code of Criminal Procedure, in the facts and circumstances of the case.
29. In view of the above, we pass the following:
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ORDER
i) The criminal appeal filed by the appellant/State is hereby dismissed as devoid of any merit.
ii) The impugned judgment and order of acquittal dated 9th June 2014 made in S.C. No.1361/2012 on the file of the Fast Track Court-III, Mayo Hall Unit, Bengaluru, acquitting the respondent/accused for the offences punishable under Sections 436 and 381 of IPC, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Gss/-