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2018 DIGILAW 283 (GAU)

NANI GOPAL PAL v. KANTI RANJAN PAL

2018-02-15

HITESH KUMAR SARMA

body2018
JUDGMENT/ORDER : 1. This appeal, under Section 378 of the Cr.P.C., is preferred against the judgment and order, dated 04-06-2013, passed by learned Judicial Magistrate, First Class, Nagaon, in CR Case No. 3335 of 2010, acquitting the accused-appellant, under Sections 448/427/380/352/34 of the IPC. 2. I have heard Mr. S.P. Roy, learned counsel appearing on behalf of complainant-appellant. I have also heard Mr. M. Choudhury, learned senior counsel, for the respondent/accused persons. 3. The prosecution case, in brief, is that the complainant has a godown at Chaparmukh town and there he used to store some goods and articles. He has a grocery shop. On 31-05-2009, at around 10.00 a.m., the accused persons entered into his store house by breaking open the lock and carried away all the goods kept therein. The accused persons chased him and also hit him while he resisted their such actions. 4. The complainant lodged an FIR, which was registered as Raha Police Station Case No. 66/2009, under Sections 147/148/380/427 of the IPC, but Final Report was submitted by the police without proper investigation, on 02-08-2010. Therefore, the delay in filing the instant complaint petition. 5. After examining the complainant and his witnesses, the learned trial Court took cognizance of the offences under Sections 448/427/380/352/34 of the IPC and issued process for appearance of the accused persons. 6. On appearance of the accused persons, after exhausting the required formalities, the trial Court framed charge against the accused persons, under Sections 448/427/380/352/34 of the IPC, to which they pleaded innocence. Therefore, the trial was held. 7. In this case, prosecution examined as many as 3 witnesses. After closure of the prosecution evidence, the statement of the accused persons were recorded under Section 313 of the Cr.P.C. and in their such statements, they denied such allegations against them. The defence examined two witnesses in support of its case. 8. After hearing the arguments advanced by the respective learned counsel for the parties and after marshalling the evidence on record, the learned trial Court passed the impugned judgment acquitting the accused persons of the charges. 9. I have meticulously examined the evidence on record. I have also heard the learned counsel for the parties. 10. 8. After hearing the arguments advanced by the respective learned counsel for the parties and after marshalling the evidence on record, the learned trial Court passed the impugned judgment acquitting the accused persons of the charges. 9. I have meticulously examined the evidence on record. I have also heard the learned counsel for the parties. 10. The learned counsel for the complainant has submitted that the decision of acquittal recorded by the learned trial Court, vide the said judgment, is perverse to the evidence on record as the vital evidence, which supports the complainant case was not discussed in the judgment. On the other hand, the learned counsel for the respondents has submitted that the judgment of the learned trail Court is based on evidence on record and there are some serious contradictions in the evidence of the witnesses for the complainant and there were disputes between them in respect of the godown, in question. The learned counsel for the respondents has also referred to the decision of the Honble Supreme Court in the case of C.K. Dasegowda and others vs. State of Karnataka, reported in (2014) 13 SCC 119 , and particularly, paragraphs-41 and 42 thereof, which read as follows : "41. Recently, in Kallu v. State of M.P., this Court stated; 8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". 42. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, re-appreciate 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 emphasize 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 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." 11. Now, this Court is required to look into as to whether the judgment of the learned trail Court is based on evidence and the view taken by the learned trail Court is reasonable and plausible. Now, this Court is required to look into as to whether the judgment of the learned trail Court is based on evidence and the view taken by the learned trail Court is reasonable and plausible. In accordance with the decision rendered by the Hon’ble Supreme Court in the decision, referred to above, this Court is not supposed to reverse the decision of the learned trial Court, merely, because a different view is possible. This Court is also to bear in mind, as observed in the aforesaid decision of the Hon’ble Supreme Court, that in case of acquittal, there is 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 shall be presumed to be innocent unless he is proved guilty by competent Court of law. Secondly, when the accused secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. It is further to be noted that 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 learned trial Court. 12. In the instant case, the evidence of the complainant, examined as PW1, shows that he has a store near his house to keep his grocery articles. He also stated that the accused persons came and looted away his goods from the store house and also destroyed some of his goods and when he resisted them, they tried to assault him and he came away to avert risk to his life. He further stated in his evidence that the said store house was situated within the boundary of his house. But, at the same time, he admitted that the store house belonged to the accused person and he used to pay rent to them for that. 13. The PW2 is heard saying in his evidence that, 10/12 persons broke open the door of the store near the shop of the informant and threw away the goods therefrom and, then, the accused persons also assaulted the PW3, the son of the complainant. He has also stated that the accused persons thrown away some of the goods and looted some of them. He resisted the accused-respondents, but, they came to hit him and he left the place of occurrence. He has also stated that the accused persons thrown away some of the goods and looted some of them. He resisted the accused-respondents, but, they came to hit him and he left the place of occurrence. The evidence on record makes it appear that there is dispute between the accused-respondents and the complainant from before. The evidence of PW1, PW2 and PW3, although makes it appear that the accused-respondents thrown and destroyed some of the goods stored in the store house by the complainant/PW1 and looted some of them, yet the evidence is absolutely not definite as to what are the articles looted and what are the articles destroyed. The role of the accused-respondents has also not been specifically indicated. PW2 deposed that while resisted by PW3, he was assaulted by the accused-respondents, is not a fact claimed by the complainant/PW1 either in his complaint petition or in his evidence. According to him (PW1) while he himself resisted the accused-respondents from committing the offences, the accused-petitioners tried to assault him following which he left the place of occurrence. He has never heard saying or alleging that the accused-respondents assaulted the PW3 or that the PW3 was present at the place of occurrence. Although the complainant/PW1 named the goods he kept in the store room, yet he has not spoken specifically as to which of such goods were destroyed or looted by the accused-respondents; rather, his evidence is general in nature. 14. Complainant/PW1 also admitted in his evidence that there was a public meeting in respect of the occurrence involved in this case and he was also a signatory to the decision in the public meeting. PW2 also admitted, in his cross-examination, that he did not know as to over whose land the godown/store room, in question, was situated. He also did not know the name of the accused persons, whom he would be able to identify, if seen. 15. PW3 is the son of the complainant/PW1. He deposed that he had seen the accused persons to have destroyed some of the goods and also taking away some of them and he resisted the accused persons, who, in turn, attempted to assault him for which he left the place of occurrence. In his cross-examination, he is heard admitted that the owner of the godown is accused/respondent, Sabirani Pal and they were the tenant of that godown house under her. In his cross-examination, he is heard admitted that the owner of the godown is accused/respondent, Sabirani Pal and they were the tenant of that godown house under her. He also expressed his ignorance as to whether the accused had asked them to vacate the godown. 16. The evidence above reveals that the godown from which the goods were either stolen or damaged by the accused persons, as alleged by the complainant/PW1, belonged to the PW1 himself as per his evidence and as per the evidence of PW3, his son, the same belonged to the accused-petitioner, Sabirani Pal and they were tenant under her. There is a dispute in respect of the godown as they were asked to vacate the same. The evidence of PW2 is that there were lot many people present at the place of occurrence and he is a resident of a place at a distance of about 2 kilometres from the place of occurrence. There were nearby shop keepers and none of these nearby shopkeepers are found examined by the complainant in support of his case; rather, he has preferred to examine the PW2, whose evidence is not reliable in the sense that he referred to PW3/son of the PW1 to be present at the place of occurrence and also that the accused persons attempted to assault him, which fact was not even alleged by the complainant himself. 17. The evidence of DW1 and DW2 makes it appear that there is a dispute between both the parties as regards the store house, wherein the incident allegedly took place and a village meeting was organized between both the parties. According to the PW1, the village meeting was held before the occurrence took place and he had signed the resolution in the meeting. DW1 also stated the same fact as stated by the complainant himself and also stated that the goods were removed by the complainant himself although he did not attend the meeting inspite of the assurance to attend the same. 18. DW2 also supported the evidence of DW1 and spoken in the same line. The evidence of PW3 is also that he had not seen the person, who had taken away goods from their godown. There were some disputes as to the tenancy of the godown, in question, is an admitted position is found from the evidence of PW3. 19. 18. DW2 also supported the evidence of DW1 and spoken in the same line. The evidence of PW3 is also that he had not seen the person, who had taken away goods from their godown. There were some disputes as to the tenancy of the godown, in question, is an admitted position is found from the evidence of PW3. 19. Therefore, it appears from such evidence that there were allegations and counter allegations, disputes as regards tenancy and the evidence of the witnesses for the complainant is not consistent to point out to the guilt for commission of alleged offence to a particular accused person. Therefore, there is reasonable doubt about the veracity of the prosecution version. On the other hand, although it has not brought on the evidence on record, yet on perusal on record, it is found that the FIR lodged by the present complainant before the police was registered and after investigation, Final Report was submitted. Thereafter, on protest, the same was sent for further investigation. After further investigation also the police submitted Final Report and this second Final Report submitted by the police was accepted by the learned trial Court after hearing on the protest of the complainant, but, this order, accepting the Final Report has not been put to challenge by the complainant; rather he has filed this complaint petition after about one month of acceptance of the Final Report, vide order, dated 23-08-2010. 20. In the background of the above facts, it can safely be held that the decision rendered by the learned trial Court, acquitting the accused respondents, is a plausible and reasonable view on the basis of the evidence on record. Therefore, in view of the decision, referred to above, particularly, paragraphs-41 and 42 of the decision quoted above, this Court is not inclined to interfere with the order of acquittal recorded by the learned trial Court in the aforesaid CR Case No. 3335 of 2010. 21. Accordingly, the appeal is dismissed. 22. Send down the LCR along with a copy of this judgment and order.