Chattisgarh High Court
State Of Chhattisgarh vs Indranil Dey on 29 November, 2022
1
Acquittal Appeal No. 219 of 2010
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Acquittal Appeal No. 219 of 2010
State Of Chhattisgarh Through The Police Station Golbazar, District
Raipur, Chhattisgarh.
---- Appellant
Versus
1. Indranil Dey S/o Dipendra Nath Dey @ Santu Aged About 32 Years R/o
Jamshedpur P.S. Telku Jharkhand, At Present Gitanjali Nagar, Sector -2
House No. 64, Raipur (C.G.)
2. Surendra Patwa S/o Tulsiram Aged About 37 Years Ashwani Nagar, Near
Tiwari Kiraya Bhandar P.S. Puranibasti Raipur (C.G.)
3. Dheeraj Mohali S/o Yuvraj Mohali Aged About 27 Years R/o Naveda
Gautampur (U.P.) At Present Gitanjali Nagar, Sector -2 Civil Line Raipur
(C.G.)
4. Mohan Vishwakarma S/o Baijnath Vishwakarma Aged About 50 Years
R/o Badhai Para, Near Jhanda Chowk, Thana Ganj, Raipur (C.G.)
5. Pratap Singh S/o Devisingh Aged About 32 Years R/o Jugyani, District
Tisa (Himanchal Pradesh) At Present House No. 1961, Lodhipara, Near
Jaihind Chowk, Pandari Raipur (C.G.)
6. Probir @ Praveer Benerjee S/o Paritosh Benerjee Aged About 43 Years
R/o Anupam Nagar, 1/9 P.S. Mowa, District Raipur (C.G.)
---- Respondents
For Appellant/ State : Shri Ashish Tiwari, G.A.
For Respondents No.2,4,5 & 6 : Shri Keshav Dewangan, Advocate.
For Respondents No.1 & 3 : None.
DB: Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
29.11.2022
Rakesh Mohan Pandey, J.
The appeal is heard on admission.
1. This appeal has been preferred by the State against the judgment of acquittal dated 29.04.2009 passed by the learned Eighth Additional Sessions Judge, F.T.C., Raipur in Sessions Trial No. 233 2 Acquittal Appeal No. 219 of 2010 of 2006, whereby the respondents/accused persons have been acquitted of the charges under Sections 120B, 419, 365 and 395 read with Section 34 of the Indian Penal Code.
2. The case of the prosecution, is that, on 19.03.2006, Pradeep Singh (PW-1) and Jitesh Prajapati (PW-2) stayed in Room No. 305 of Vinayak Hotel, Malviya Road, Raipur and they were carrying Diamond, Ruby and other jewels for sale worth Rs.10,00,000/-. On the same date, at about 10:00 pm, four persons entered into their room. Respondent No.6 - Probir @ Praveer Banerjee impersonated as CBI Officer and they informed the complainant and his companion that they have come for enquiry regarding the smuggling of the diamonds. Thereafter, the complainant and his companion were taken near Kotwali Police Station and all jewels were looted from their possession. On a written complaint (Ex.P/6) of Jitesh Prajapati (PW-2), First Information Report (Ex.P/7) was registered. The Diamond Businessman i.e. Pradeep Singh (PW-1) was abducted. After due investigation, the police arrested present respondents vide (Ex.P/21 to Ex.P/26), Identification Parade was conducted vide (Ex.P/1 to Ex.P/5), memorandum statements were recorded vide (Ex.P/7A to Ex.P/13), Diamond, Yamaha Motorcycle, Hero Honda Motorcycle, I-Card, one Nokia Mobile and one Bajaj Caliber Motorcycle were seized vide (Ex.P/14 to Ex.P/20). The statements of the witnesses were recorded. The purchase receipts of the diamond were seized vide (Ex.P/30 to Ex.P/36). After completion of investigation, the police filed charge-sheet before learned Judicial Magistrate First Class, Raipur and the same was committed to the learned Sessions Court for deciding the case on 3 Acquittal Appeal No. 219 of 2010 merits. Learned trial Court framed charges for the offence punishable under Sections 120B, 419, 365 and 395 read with Section 34 of the IPC. The respondents/ accused abjured the guilt and took the plea that they have not committed any offence and they have falsely been implicated in the case.
3. The statements of the accused persons under Section 313 of Cr.P.C. were recorded and one defense witness, Safdar Ali (DW-1), was examined by the accused persons.
4. The learned trial Court after appreciating the oral and documentary evidence available on record, acquitted all the accused persons, who are respondents in this acquittal appeal vide judgment dated 29.04.2009 assigning the reasons in paragraph No.36 of the judgment, which are as under:
"36@& 'ks"k vfHk;qDrx.k bUnzuhy Ms] eksgu fo'odekZ ,oa izksohj mQZ izksfcj csuthZ ds laca/k esa izLrqr lk{; ds fo'ys"k.k mijkar lkf{k;ksa ds dFku esa vU; NksVs&eksVs folaxfr;ksa dks ;fn utj vankt Hkh dj fn;k tk, rks eq[; fojks/kkHkk"k vkSj folaxfr tks nf'kZr gksrh gS og fuEu gS %& 1& iznhi flax dqy fdruh jkf'k dher ds ghjs tokgjkr fdlds ikl ls ysdj vk;k Fkk og larks"ktud lk{; ls izekf.kr ugha gSA 2& izkFkhZ iznhi flax ds miyC/k jgus ds ckn Hkh izn'kZ ih&7 dh izFke lwpuk fjiksVZ ftrs'k iztkifr ls fy[kok, tkus ls ?kksj lansg dh fLFkfr fufeZr gksrh gSA 3& izkFkhZ iznhi flax rFkk ftrs'k iztkifr ds dFku rFkk iqfyl c;ku vkSj foospd ds dFku vkSj dk;Zokgh esa iznhi flax ds ikl ;fn dksbZ ghjs tokgjkr Fks rks 4 Acquittal Appeal No. 219 of 2010 mudh dher ds ckjs esa xaHkhj fojks/kkHkk"k ekStwn gSA 4& foospd us izn'kZ ih&34] ih&35] ih&36 ds ftu nLrkostksa dks iznhi ds ghjksa dk fcy crk;k gS mDr fcy tkjh djus ds laca/k esa daiuh ls iwNrkN dj mUgsa xokg Hkh ugha cuk;k gS rFkk iznhi flax foospd dks mDr fcy nsus ckcr~ dksbZ dFku ugha djrk gS cfYd og tkaxMcqd ykuk dgrk gS ftls vfHk;qDr izchj }kjk QkM+ fn;k tkuk dgrk gS tks ?kksj lansg dks tUe nsrk gSA 5& izn'kZ ih&6 vkSj ih&7 dh fjiksVZ esa ftl ijs'k HkkbZ ds ikl ls iznhi flax ghjs ysdj vk;k Fkk ;g mYysf[kr gS ml ijs'k HkkbZ dks ugha tkuuk iznhi flax us dgk gS rFkk vfHk;kstu mDr dfFkr ijs'kHkkbZ dks crkSj lk{kh U;k;ky; esa is'k djus esa lQy ugha jgk gSA 6& tIrh vkSj eseksjs.Me ds lkf{k;ksa us foospd ds dFku rFkk dk;Zokgh dk leFkZu ugha fd;k gSA 7& foospd us tIr'kqnk ewY;oku laifRr dks fdl vfHk;qDr ls tIr dj jgk gS ;g n'kkZrs gq, vyx&vyx lhycan ugha fd;k gSA 8& foospd us tIr'kqnk mDr ewY;oku ghjs] tokgjkr dks Fkkuk xksycktkj ds eky[kkus esa j[kokuk tks dgk gS og lgh ugha gS ;g izekf.kr gks pqdk gSA 9& foospd us fcuk fdlh rLnhd ds tIr'kqnk laifRr igpku dk;Zokgh djkus okys dks fn;k rFkk fcuk fdlh rLnhd ds mDr laifRr okil izkIr fd;kA 10& laifRr dh igpku dk;Zokgh ds Bhd igys gh tIr'kqnk okguksa dks tIrhdrkZ us Fkkus esa ns[k fy;k FkkA 11& ghjs tokgjkrksa dh ftudh igpku dk;Zokgh 5 Acquittal Appeal No. 219 of 2010 djk;h x;h Fkh mUgsa ,d lkFk feykdj ugha j[kk x;k Fkk cfYd mUgsa vyx vyx FkSys esa j[kk x;k FkkA 12& 28 rkjh[k dks vfHk;qDrx.k dh igpku dk;Zokgh gksus ds igys gh 25 rkjh[k dks izkFkhZ iznhi flax o ftrs'k iztkifr dks Fkkus esa vfHk;qDrx.k dk fn[kkdj crkuk fd tks ?kVuk mlds lkFk gqbZ gS mlds vfHk;qDrx.k fxj¶rkj gq, gS ;g izekf.krdrkZ gS fd foospuk ,tsalh us idM+s x, yksxksa dh f'kuk[rh djus ds fy, izkFkhZ dks ck/; fd;k gSA 13& U;k;ky; esa izLrqr laifRr ds laca/k esa izkFkhZ dk ;g Li"V dguk gS fd og mlls ywVh x;h laifRr ugha gS ;g izekf.kr ugha gksrk gS fd vfHk;qDrx.k ls izkFkhZ ls ywVh x;h laifRr tIr dh x;h gSA 14& foospd ,l0,u0 flnkj Lo;a gh bl ckr ij fuf'pr ugha gS fd U;k;ky; esa vfHk;sktu }kjk tks laifRr is'k dh x;h gS vFkkZr~ vkfVZdy&,&1 ls 9 ogh ghjs gS ;k ugha tks mlus tIr fd;k FkkA 15& laifRr tIrh mijkar foospd us fdlh Hkh fo'ks"kK ls mldk ijh{k.k vkSj ewY;kadu ugha djk;k gS cfYd O;kikfj;ksa ls iwNrkN vankt ls mldk ewY; fy[kuk dgk gS ;g fLFkfr Hkh vfHk;kstu ds izdj.k ij izfrdwy izHkko Mkyrh gSA 16& tIr'kqnk vkfVZdy&Mh dh eksckbZy dh bZ0,e0vkbZ0 uacj ds laca/k esa foospuk ,tsalh ds }kjk ;g lk{; ,df=r ugha fd;k x;k gS fd mDr bZ0,e0vkbZ0 uacj dk eksckbZy iznhi ds uke ij FkkA 17& izkFkhZ iznhi flax ftl fjD'ks esa okil Fkkus vk;k Fkk ml fjD'ks okys dks Hkh xokg ugha cuk;k x;k gSA 6 Acquittal Appeal No. 219 of 2010 18& lkf{k;ksa ds dFku ds fojks/kkHkk"k vkSj foospuk esa cjrh x;h ykijokgh crkSj vU; cgqr lkjs NksVs&eksVs folaxfr vkSj fojks/kkHkk"k ekStwn gS tks vfHk;kstu ds izdj.k ij izfrdwy izHkko Mkyrs gSA"
5. Learned counsel for State/appellant submits that the learned trial Court has mis-appreciated the evidence on record and has come to an erroneous finding that the possession of looted diamonds was duly not proved by the prosecution beyond reasonable doubt. Further, the prosecution version was duly proved by the evidence of Pradeep Singh (PW-1) and Jitesh Prajapati (PW-2) and the learned trial Court has given credential to the minor discrepancies. The learned trial court has not appreciated oral and documentary evidence properly before arriving at the findings recorded in para
36. Learned State counsel prays for setting aside the order passed by the learned trial Court and to convict the respondents.
6. On the other hand, learned counsel for respondent No. 2, 4, 5 & 6 submits that the looted articles were not seized in accordance with the procedure contemplated in the Cr.P.C. The Malkhana register was not produced before the learned trial Court and the same was not maintained properly. He further submits that the memorandum and seizure witnesses have not supported the case of the prosecution and the Test Identification Parade conducted by the prosecution is vitiated as the accused persons were shown to Pradeep Singh (PW-1) prior to Test Identification Parade and the police party was also present at that time. He prays for dismissal of the acquittal appeal.
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Acquittal Appeal No. 219 of 2010
7. The law with regard to deciding and disposing of the criminal appeal against the acquittal has been elaborately dealt with by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh, reported in (2021) 6 SCC 116, in paragraphs 15 to 20, which is as under:-
"15. In Babu v. State of Kerala (2010) 9 SCC 189, this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
"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, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v.8
Acquittal Appeal No. 219 of 2010 State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor , 1934 SCC OnLine PC 42, the Privy Council observed as under:
"... 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 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 AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
'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 9 Acquittal Appeal No. 219 of 2010 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 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, 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 weight and 10 Acquittal Appeal No. 219 of 2010 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, the Court again examined the earlier judgments of this Court and laid down that:
'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, 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: State of U.P. v. Banne, (2009) 4 SCC 271 '(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;
(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 11 Acquittal Appeal No. 219 of 2010 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.
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 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."
16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: [Babu v. State of Kerala, (2010) 9 SCC 189] "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer- cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 12 Acquittal Appeal No. 219 of 2010 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)."
It is further observed, after following the decision of this Court in the case of Kuldeep Singh v.
Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
17. In the decision of this Court in the case of Vijay Mohan Singh v. State of Karnataka (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
(SCC p. 233) '10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and 13 Acquittal Appeal No. 219 of 2010 come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) '8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were 14 Acquittal Appeal No. 219 of 2010 wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-
compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction 15 Acquittal Appeal No. 219 of 2010 passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10) '5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of 16 Acquittal Appeal No. 219 of 2010 acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC
122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be 17 Acquittal Appeal No. 219 of 2010 brought to ridicule.
18. In the case of Umedbhai Jadavbhai (supra), in paragraph 10, it is observed and held as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
19. In the case of Atley v. State of Uttar Pradesh AIR 1955 SC 807, this Court has observed and held as under:
"5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In Our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal P. C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the 18 Acquittal Appeal No. 219 of 2010 judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. The State 1952 CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR 1953 SC 122. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions."
20. In the case of K.Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355, this Court has observed that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.'
8. In the case of Anjanappa vs. State of Karnataka, reported in 2014 Cri LJ 368, the Hon'ble Supreme Court while dealing with the law 19 Acquittal Appeal No. 219 of 2010 with regard to deciding and disposing of the criminal appeal against acquittal held as under:-
"9. It is well settled that an order of acquittal is not to be set aside lightly. If the view taken by the trial court is a reasonably possible view, it is not to be disturbed. If two views are possible and if the view taken by the trial court is a reasonably possible view, then the appellate court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse. We have examined the trial court's order of acquittal in light of above principles. We are of the considered opinion that the High Court was justified in setting it aside as it is perverse."
9. In the case of Shriniwas vs. State of U.P. and Ors., in Criminal Misc. Application under Section 372 of the Cr.P.C. (Leave to Appeal) No.150 of 2014, it has been held by the Allahabad High Court in paragraphs 10 & 11 as under:-
"10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that 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. Paragraphs 12, 13, 16 & 17 of the aforesaid 20 Acquittal Appeal No. 219 of 2010 judgment are quoted as under:-
"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 more, the 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. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of 21 Acquittal Appeal No. 219 of 2010 Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
"...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 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...."
16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated 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 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 @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal 22 Acquittal Appeal No. 219 of 2010 should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
11. In Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543 reiterating the law, Supreme Court held that it is fundamental in criminal jurisprudence that every person is presumed to be innocent until proven guilty and it is obligatory on the prosecution to establish the guilt of the accused save where the presumption of innocence has been statutorily dispensed with, for example, under Section 113-B of the Evidence Act, 1872. It was further held that it is well crystallized principle that if two views are possible, the High Court ought not to interference with the trial court's judgment. However, such a precautionary principle cannot be overstretched. It is well settled that there is no bar High Court's power to reappreciate evidence in an appeal against acquittal."
10. Now reverting to the facts of the present case and in light of the judgments passed by the Hon'ble Supreme Court in the above cited decisions, Pradeep Singh (PW-1) has admitted that he was carrying 9 pieces of diamond worth Rs.1,75,000/- only and the complaint was not lodged by him. He has further admitted the fact that the jewels were not insured and in the register of the hotel, he had not shown himself as the Diamond Businessman. In paragraph 19, he has admitted that at the time of Test Identification Parade, the police personnel were present whereas, in the FIR, worth of the diamond was narrated as Rs.10,00,000/- and therefore, learned trial Court has rightly held that Pradeep Singh (PW-1), owner of the 23 Acquittal Appeal No. 219 of 2010 diamond has not given satisfactory evidence regarding the worth of the diamond which he was carrying.
11. The reason assigned by the learned trial Court with regard to registration of FIR, which was lodged by Jitesh Prajapati (PW-2), who was in company of Pradeep Singh (PW-1) is that it is not in dispute that the owner of the diamond was Pradeep Singh (PW-1) and though he was present but FIR was lodged by Jitesh Prajapati (PW-2) and in the evidence, neither Pradeep Singh (PW-1) nor Jitesh Prajapati (PW-2) has explained the reason for not lodging the FIR by Pradeep Singh (PW-1). From evidence of Pradeep Singh (PW 1) it is apparent that he has not assigned any reason for not lodging the FIR himself, therefore, learned trial Court has rightly recorded this finding.
12. With regard to third reason assigned by the learned trial Court, it is apparent that Pradeep Singh (PW-1) has stated in his evidence that worth of jewels was Rs.1,75,000/- whereas, in the FIR, Jitesh Prajapati (PW-2) has stated the worth of the jewels was Rs.10,00,000/- , thus there is contradiction in the statement of both the witnesses and same goes to the root of the case and it also creates a doubt on the prosecution story.
13. Pertaining to reason No.4 recorded by the learned trial Court, where it is held that (Ex.P/34, P/35 & P/36) the bills issued in favour of Pradeep Singh (PW-1) regarding purchase of the diamonds, it is apparent that the Proprietor Chetan S. Doshi, Diamond Manufacturer & Commission Agent has not been examined. It is well-settled principle of law that until and unless 24 Acquittal Appeal No. 219 of 2010 author of the document is examined before the Court of law, the very document cannot be proved and admitted in the evidence.
14. Pertaining to reason No.5 recorded by the learned trial Court, wherein it is quite vivid that the report (Ex.P/6) and FIR (Ex.P/7) were lodged by Jitesh Prajapati (PW-2) where he has stated that the diamonds were purchased from Paresh Bhai but Paresh Bhai has neither been cited as a witness nor been examined.
15. Pertaining to reason No.6 assigned by the learned trial Court, it is crystal clear from the testimony of memorandum and seizure witnesses, Lakeshwar Mahanand (PW-5) and Prem Kumar (PW-
14), that they have not supported the case of the prosecution. Particularly they have not supported the seizure which makes the prosecution version doubtful.
16. Pertaining to reason No. 7 & 8, S.N. Sidar (PW-17), Investigating Officer of the case has admitted that the seized articles were not sealed separately. It is further found by the learned trial Court that the seized articles were not kept in safe custody, therefore, the learned Trial Court has rightly recorded findings in this regard.
17. Pertaining to reason No.9, the seized articles were handed-over for Test Identification Parade without making any enquiry and same was again taken into custody without any enquiry. It is also admitted that the articles were not sealed and were not kept in safe custody. It makes it manifest that the Police has not complied with the procedure properly while keeping the seized articles in safe custody.
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18. Pertaining to reasons No.10, 11, 12, 13 & 14, regarding identification of seized vehicles and the jewels, S.N. Sidar (PW-17), the Investigating Officer has admitted that there is no specification in the register as to which property was seized from which accused. The articles were not sealed and the diamonds were kept in separate packets. Sunil Vandre (PW-11) has admitted that the packets were opened by the police and they were not mixed properly. He has further admitted in paragraph 6 that the articles were identified on account of pressure given by the police. Pradeep Singh (PW-1) has stated that the property which was shown during identification was not his property and the same was not sealed. Sunil Vandre (PW-11) has admitted that the seized vehicles were shown to him prior to Identification in the police station. From the above piece of evidence, it is crystal clear that the learned trial Court has rightly held that the identification of articles and vehicles was not in accordance with law.
19. Pertaining to reason No.15 assigned by the learned trial Court with regard to S.N. Sidar (PW-17), Investigating Officer who has admitted that the seized articles were neither verified nor valued by any of the experts and the price of the articles was mentioned in the charge sheet after getting oral assessment from local persons, therefore, the learned trial Court rightly held that such a process is fatal to the prosecution.
20. Pertaining to reason No.16 assigned by the learned trial Court, it is not established that the seized mobile belongs to Pradeep Singh (PW-1) and there is no such evidence.
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21. Pertaining to reason No.17 assigned by the learned trial Court, it has been held that the prosecution has not cited or arrayed rickshaw owner who dropped Pradeep Singh (PW-1) to the police station. From the charge-sheet, it appears that the rickshaw driver has not been arrayed as a witness; therefore, the finding recorded by the learned trial Court in this regard is just and proper.
22. From the above finding recorded by the learned trial Court and after appreciating the entire evidence of the case and in light of the judgments passed by the Hon'ble Supreme Court, we are of the conclusion that the learned trial Court has not committed any illegality in passing the order of acquittal in favor of the respondents, therefore, the acquittal appeal is held to be devoid of merits and is liable to be and is hereby dismissed at the stage of admission itself.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nimmi