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2016 DIGILAW 897 (RAJ)

State of Rajasthan v. Champalal

2016-06-23

VIJAY BISHNOI

body2016
JUDGMENT : Vijay Bishnoi, J. 1. This criminal appeal has been preferred by the appellant-State against the judgment dated 22.08.1996 passed by Civil Judge (JD) and Judicial Magistrate. First Class Sanchore (hereinafter referred to as 'the Trill Court') in Criminal Case Nos. 557/1994 and 556/1994, whereby the Trial Court has acquitted the accused-respondent for the offences punishable under Section 381 I.P.C. 2. Brief facts of the case are that on 18.12.1993, PW-7 Lal Singh has submitted a written report at Police Station, Sanchore while stating that he is the Branch Manager of Marwar Gramin Bank, Dedva and he was on leave on 10.12.1993 and 11.12.1993 and during that course the charge of Branch of the Bank was with PW-1 Tarachand Joshi. It is stated that on 13.12.1993, he returned back from leave and took charge of Branch, however, when he asked Tarachand Joshi about the keys of the safe then he informed him that the keys are missing then he obtained the duplicate keys from Sanchore and opened the safe and found that Rs. 19,400/- are missing, it is stated in the complaint that the said amount was deposited by Tarachand Joshi on 13.12.1993 itself. It is alleged that the said amount of Rs. 19,400/- was misappropriated by Tarachand Joshi. 3. The police after investigation has filed charge-sheet against the accused-respondent instead of Tarachand Joshi for the offence punishable under Section 381 I.P.C. It is noticed that in an another F.I.R., filed on behalf of Tarachand Joshi the police has filed charge-sheet against the accused-respondent for the offence punishable under Section 381 I.P.C., but the Trial Court has tied up both the cases vide order dated 25.5.1995 and the charges have been framed against the accused-respondent for the commission of offence punishable under Section 381 I.P.C. 4. During the course of trial as many as 14 witnesses have been examined by the prosecution and statements of accused-respondent were recorded under Section 313 Cr.P.C. and he also got examined as defence witness DW-1. The Trial Court after taking into consideration the evidence produced on behalf of the prosecution has acquitted the accused-respondent for the offence punishable under Section 381 I.P.C. Hence, this criminal appeal. 5. The Trial Court after taking into consideration the evidence produced on behalf of the prosecution has acquitted the accused-respondent for the offence punishable under Section 381 I.P.C. Hence, this criminal appeal. 5. Learned Public Prosecutor has argued that the prosecution has proved the charges against the accused-respondents beyond reasonable doubt by producing cogent and reliable evidence but the Trial Court without considering the prosecution evidence in right perspective has acquitted the accused-respondent. 6. Per contra, learned Counsel for the respondent has supported the impugned judgment passed by the Trial Court and argued that the Trial Court is rightly acquitted the accused-respondent as the prosecution has failed to we the guilt of accused-respondent for the offence punishable under Section 381 I.P.C. by producing cogent and reliable evidence. 7. Heard learned Counsel for the rival parties and carefully scrutinised the record. 8. So far as the power of the High Court in reversing the finding of acquittal into conviction is concerned, there is no quarrel that the High Court has power to convert the acquittal into conviction, however, it is equally true that if the Trial Court's judgment is based on evidence and the view taken by the Trial Court in favour of the accused is possible, the High Court would not be justified in interfering only on the ground that a different view could also be taken. 9. On this point, the Hon'ble Supreme Court in the case of Gopal Singh & Ors. v. State of M.P., reported in 2010 Cr.L.R. (SC) 453 has held as under: "7. We have considered the arguments advanced by the learned Counsel for the parties. The High Court's power while converting an acquittal into a conviction is no longer a matter of speculation and debate. It is now well settled that if the Trial Court’s judgment is well based on the evidence and the conclusion drawn in favour of the accused was possible thereof, the High Court would not be justified in interfering on the premise that a different view could also be taken and though the High Court was entitled to reappraise the evidence there should be substantial and compelling reasons for setting aside an acquittal order and making one of conviction." In Anil Kumar Gupta v. State of Uttar Pradesh reported in 2011 Cr.L.R. (SC) 103, the Hon'ble Supreme Court has held as under: 10. In Ramesh Babulal Doshi, this Court held that "the mere fact that a view other than the one taken by the Trial Court can be legitimately arrived at by the Appellate Court on reappraisal of the evidence, cannot constitute a valid and sufficient ground to interfere an order of acquittal unless it comes to the conclusion that the entire approach of the Trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal, the Appellate Court is first required to seek an answer to the question whether the findings of the Trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative, the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions". 11. In Dwarka Das, this Court following the decision in Ramesh Babulal Doshi, further observed that "there 14 cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a Trial Court, would have taken the other view. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the Trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice". 12. In Chandrappa & Ors. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice". 12. In Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 , this Court re-appreciating the aforesaid principles, further observed that "in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent Court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the Trial Court. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point". Having stated so, this Court also held that an Appellate Court has full power to re-appreciate, review and reconsider the evidence upon which the order of acquittal is founded. But it is well established that if two views are possible on the basis of evidence on record and one favourable view to the accused has been taken by the Trial Court, it ought not to be disturbed by the Appellate Court." 10. Keeping in view the principle laid down by the Hon'ble Supreme Court in the above referred cases, if we go through the conclusions arrived at by the learned Trial Court while acquitting the accused persons for the offence unit Section 381 I.P.C., I find that the conclusions arrived at by the learned Trial Court could be a possible view which can be arrived at on the basis of the evidence produced by the prosecution. 11. The case of prosecution was solely based on the testimony of PW 1 Tarachand Joshi. The Trial Court has observed that PW-1 Tarachand Joshi has lodged an F.I.R. in relation to the theft of Rs. 11. The case of prosecution was solely based on the testimony of PW 1 Tarachand Joshi. The Trial Court has observed that PW-1 Tarachand Joshi has lodged an F.I.R. in relation to the theft of Rs. 19400/- from the safe of Bank on 13.12.1993 at about 10:00 PM, however, in his statement he is stated that he has lodged the report Exhibit P-1 at Police Station, Sanchore on 13.12.1991 at about 11:00 AM. The Trial Court has observed that as per the statement of PW-7 Lal Singh, when he came back from leave on 13.12.1993 and assumed charge of Bank, he asked to PW-1, Tarachand Joshi regarding the keys and then he informed that the keys of the safe is missing then he has procure the duplicate keys from Sanchore and opened the safe and found that Rs. 19,400/- is missing from the safe. 12. Per contra, PW-7 Lal Singh in his statement has clearly stated that on 13.12.1993, he along with Tarachand Joshi was in the Bank at Branch Dedva till late night. It is also stated by him that the safe was opened at about 3:30-4:00 PM on 13.12.1993 after procuring the duplicate keys from Sanchore and then only he came to know about the fact of missing of Rs. 19400/-. It is also stated that PW-1 Tarachand Joshi has deposited the said missing amount on 13.12.1993 itself. 13. From the above evidence, it is clear that till the opening of the safe at about 3:30 - 4:00 PM on 13.12.1993, no one was aware about the fact of missing of Rs. 19,400/- from the safe and after the disclosure of the said fact, Tarachand Joshi has deposited the said amount after borrowing it from somebody. Looking to the contradiction in the evidence of PW-1 and PW-7, it is clear that the factum Stealing of Rs. 19,400/- from the safe of the Bank of Branch village Dedva by the accused-respondent has not been proved by the prosecution beyond reasonable doubt. The Trial Court has considered the prosecution evidence in detail and, thereafter, found that no case for holding the accused respondent for guilty in commission of offence punishable under Section 381 I.P.C. is made out. 14. 19,400/- from the safe of the Bank of Branch village Dedva by the accused-respondent has not been proved by the prosecution beyond reasonable doubt. The Trial Court has considered the prosecution evidence in detail and, thereafter, found that no case for holding the accused respondent for guilty in commission of offence punishable under Section 381 I.P.C. is made out. 14. After analysing the prosecution evidence available on record, I am of the view that the view taken by the Trial Court is just and proper and the learned Public Prosecutor has failed to pursue me to take a different view in the matter. Hence, I do not find any force in this criminal appeal and the same is here by dismissed. Record of the Trial Court be sent forthwith.