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2017 DIGILAW 953 (GAU)

Sandip Das v. Jugal Kishore Dalmia

2017-07-20

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : This is an appeal, against the judgment and order dated 22.7.2005, passed in CR Case No. 534/2004, acquitting the accused respondent No. 2 of the charge under Section 392 IPC. 2. The case of the appellant, who was the complainant in the aforesaid CR Case before the learned Additional Chief Judicial Magistrate, Dhemaji, is that, he purchased a Maruti Van, bearing Registration No. AS-22/4704, on 30.7.2003, in the name of his wife Smt. Beena Das from the accused respondent No. 2 at a consideration of Rs. 1,61,000/-, and towards the satisfaction of the consideration amount, Rs. 1,45,000/- , as agreed, was paid instantly and Rs. 16,000/- was agreed to be paid and received by the parties on 6.5.2004. The complainant appellant visited the residence of the accused respondent for making the payment of balance amount of Rs. 16,000/-, but could not be paid as he was not found available in the residence. On 23.6.2004, while the complainant appellant with his family members were proceeding to Silapathar in the said vehicle, they were intercepted at Silapathar Forest Gate by the accused respondent and taken away the vehicle from his possession after putting him under threat and even assaulting him. 3. On receipt of the complaint, the learned trial court proceeded as per procedure prescribed by law, and ultimately, took cognizance of an offence under Section 392 IPC against the accused respondent. A charge under Section 392 IPC was framed against the accused respondent in due course. 4. After completion of trial, the learned Additional Chief Judicial Magistrate, vide his judgment aforesaid, acquitted the accused of the offence under Section 392 IPC. 5. This appeal is against an order of acquittal. It is a settled law that unless there is apparent perversity in the judgment of a trial court, there should not be any interference of the same in the appeal. 6. Therefore, such settled position of law necessitates this court to look into the evidence on record and the judgment passed by the learned trial court to find out whether there is any perversity in the decision of the learned trial court which, otherwise, would have resulted in a decision different to the one recorded by the learned trial court. 7. I have perused the record of the learned trial court and evidence of the witnesses. I have also meticulously examined the impugned judgment. 8. 7. I have perused the record of the learned trial court and evidence of the witnesses. I have also meticulously examined the impugned judgment. 8. From the evidence of PW1 and PW2, who are the eyewitnesses of the alleged occurrence of taking away of vehicle from the possession of the complainant appellant, it is clear that they were also travelling in the said Maruti Van at the relevant point of time and the accused respondent along with two others, restrained them at Silapathar Forest Gate, and also asked the complainant appellant to hand over the key of the vehicle to him. The two boys supporting the accused respondent, were armed with iron rod, threatened the complainant appellant and one of them even assaulted him with a fist blow. Then, out of fear, complainant appellant handed over the key of the vehicle and the accused respondent and his companion fled away from the place of occurrence thereafter. The evidence on record and the judgment, read together, makes it appear that there was some improvement in the evidence of PW1 and PW2, so far assault on the complainant appellant is concerned at the relevant time of occurrence, as their such evidence is found inconsistent with the initial statements recorded by the court before asking cognizance. 9. It has come out from the evidence on record that, vide Ext.1, the aforesaid vehicle was purchased by the complainant appellant from the accused respondent in the name of his wife. On scrutiny of the evidence on record as a whole, it does not appear that there is any dispute raised on Ext.1, meaning thereby, the execution of the Ext.1 is never in question during the trial of the case. 10. In Paragraph-22 of the judgment, the learned trial court has recorded that the evidence of PW1 and PW2 lent support to the Ext.1. The Paragraph-22 of the judgment is quoted below : “The evidence of PW1 and PW2 also reveals that PW2 has purchased the said vehicle on 30.7.2003 from the accused vide Exhibit (1), fixing the price of the vehicle at Rs. 1,61,000/- she has paid a sum of Rs. 1,45,000/- to the accused and agreed to pay the remaining sum on 6.5.2004, but she could not pay the sum of that day as the accused is found absent in his house. 1,61,000/- she has paid a sum of Rs. 1,45,000/- to the accused and agreed to pay the remaining sum on 6.5.2004, but she could not pay the sum of that day as the accused is found absent in his house. The accused has handed over the vehicle alongwith the documents then and there. Their evidence also reveals that from 30.7.2003 to 23.6.2004 the vehicle was in their possession. PW3 is the attesting witness and PW4 is the author of exhibit (1) and to some extent they also leads support to the version PW1 and 2 in this regard. Now it is to be seen how far the witnesses of the complainant are reliable.” 11. Thereafter, the learned trial court, while recording that the PW1 and PW2 have improved their version at different stage of the case, but on the core point of taking of the vehicle by the accused respondent, no dispute has been recorded. To arrive at the truth to a particular fact, it is the responsibility of the court to segregate the evidence that can be relied upon from the evidence which is untrustworthy. There is no such definite principle of appreciation of evidence. There is no reason for the court for not believing the evidence of PW1 and PW2 which is consistent and corroborative on facts. Some deviations or improvements in the evidence before the court from the statements under Section 200 or 202 Cr.PC is found in the evidence on oath before the trial court do not necessarily falsify the prosecution version as a whole. 12. Whatever it may be, it appears from the evidence on record taken together with the appreciation of evidence recorded by the learned trial court in Paragraph-22 & 23, it does not appear that there was correct appreciation of the evidence on record. Had the evidence, on record, been correctly appreciated, perhaps, the decision would have been otherwise than the one recorded by the learned trial court. That apart, in Paragraph-25 of the judgment, the learned trial court recorded that the vehicle was handed over to the complainant appellant and that only the Registration Certificate was handed over and the Insurance Policy was supposed to be handed over on 6.5.2004 on payment of the remaining amount of Rs. 16,000/-. That apart, in Paragraph-25 of the judgment, the learned trial court recorded that the vehicle was handed over to the complainant appellant and that only the Registration Certificate was handed over and the Insurance Policy was supposed to be handed over on 6.5.2004 on payment of the remaining amount of Rs. 16,000/-. But the fact remains that the learned trial court has accepted the evidence of taking away of the vehicle from the possession of the complainant appellant midway while he was proceeding to Silapathar, which speaks volumes about handing over of the vehicle to the complainant appellant. 13. The position appearing from the evidence on record, as indicated above, and the conflicting appreciation and the evidence of the witnesses in Paragraph-22, 23 & 25 of the judgment, leaves this court with no doubt that a detail evaluation of the evidence on the record is necessary so as to avoid any perversity in the findings recorded by the learned trial court. 14. That being so, the judgment dated 22.7.2005, passed in CR Case No. 534/2004, by the learned Additional Chief Judicial Magistrate, Dhemaji, is set aside and remanded back with a direction to proceed with the case from the stage of argument and to deliver a fresh judgment. 15. It is made clear that the learned court, without being influenced by the observation made by this court, is at liberty to pass any free and independent judgment. 16. Both the parties are directed to appear before the learned trial court on 17.8.2017. 17. Accordingly, the appeal is party allowed. 18. Send back the LCR along with a copy of this judgment.