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2024 DIGILAW 90 (RAJ)

State of Rajasthan v. Vishan Singh

2024-01-12

MANOJ KUMAR GARG

body2024
ORDER : 1. Instant criminal appeal has been filed by the State against the judgment dated 23.06.1989, passed by learned Chief Judicial Magistrate, Barmer in Cr. Case No. 93/1984, whereby the learned trial court acquitted the accused-respondent from the offence under Section 9 of Opium Act. 2. Brief facts of the case are that on 14.12.1983, during checking, the Police team recovered 2.330 kg. opium from the possession of the accused-respondent without any valid licence and permit. The police registered the FIR for offence under Section 9 of Opium Act and started investigation. After investigation, the police filed challan against the accused-respondent. Thereafter, the charge for offence under Section 9 of Opium Act was framed by the trial court against the accused-respondent, who denied the same and claimed trial. 3. During the course of trial, prosecution examined six witnesses in support of its case. Thereafter, statement of the accused-respondent under section 313 Cr.P.C were recorded. 4. Upon conclusion of the trial, learned trial court vide impugned judgment dated 23.06.1989 acquitted the accused-respondent from the offence as mentioned earlier. Hence, this appeal. 5. Learned Public Prosecutor has submitted that the linked evidence has properly been proved by the prosecution and sample was intact, therefore, the findings of the trial court in this regard is illegal. The learned trial court has failed to appreciate the evidence in its right perspective and hence committed grave and serious error of law in acquitting the accused-respondent from the offence. From the evidence available on record, a clear cut case is made out against the accused-respondent. Therefore, the judgment of acquittal deserves to be set aside and the matter may be remanded back to the trial court for passing a fresh order. 6. Per contra, counsel for the accused-respondent submits that the case was registered under old opium Act and now the said old Opium Act has been repealed by the State Government. The trial court in its findings has clearly mentioned that the site inspection memo was not prepared by the Investigating Officer as well as the Head Constable Shambulal was not examined, thus, the link evidence is completely missing. The learned trial court has considered each and every aspect of the matter while passing the order of acquittal. The learned trial court has passed a detailed and reasoned order of acquittal, which requires no interfere from this Court. 7. The learned trial court has considered each and every aspect of the matter while passing the order of acquittal. The learned trial court has passed a detailed and reasoned order of acquittal, which requires no interfere from this Court. 7. Heard learned counsel for the parties and perused the impugned judgment as well as considered the material available on record. 8. On perusal of the impugned judgment, it appears that the learned trial court has given specific finding that the linked evidence in this case is completely missing as the prosecution has failed to examine Head Constable Shambhulal, who delivered the samples at Forensic Laboratory. It is the duty of the prosecution to prove that the samples were delivered at Forensic Laboratory in an intact condition. However, in absence of evidence of Head Constable Shambhulal, it cannot be said that the samples were delivered intact. Further, the site inspection memo was also not prepared by the Investigating Officer. Thus, the prosecution has failed to prove the case against the accused-respondent for offence under Section 9 of Opium Act beyond all reasonable doubts. 9. In the light of aforesaid discussion, the appellant-State has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. The learned trial court has rightly acquitted the accused-respondent from the offence. The order passed by the learned trial court is a detailed and reasoned order and the same does not warrant any interfere from this Court. 10. In the case of 'Mrinal Das & others v. The State of Tripura, : 2011 (9) SCC 479 ,' decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under: “An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”,for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc.,the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” 11. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc.,the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” 11. Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, reported (2012) 1 SCC 602 ,' the Hon'ble Supreme Court has observed as under: “A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.” 12. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion is that there is no substantial difference between an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the trial Court is a reasonable one and the conclusion reached by it had grounds well set out on the materials on record, the acquittal may not be interfered with. Learned counsel for the appellant has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. 13. In the facts and circumstances of the case, the present criminal appeal has no substance and the same is hereby dismissed. 14. The record of the trial court be sent back forthwith.